Ledbetter v. Mandell , 126 N.Y.S. 497 ( 1910 )

Miller, J.:

On a former appeal in this case a judgment entered upon a dismissal of the complaint at the close of the plaintiff’s evidence was reversed (124 App. Div. 854). The present appeal is from a judgment for the defendant entered upon a verdict directed by the court upon motions made by both parties at the close of the case.

The opinion of Mr. Justice Clarke on the prior appeal contains a complete and accurate statement of the proceedings in the United States Court for- the Southern District of the Indian Territory, resulting in- the judgment in suit, and obviates the necessity of a restatement. One change in the record, however, with respect to those proceedings needs to be noted. It now appears that, in addition to the entry of the word “dismissed” on February 3, 1899, upon the clerk’s docket, a similar entry was made upon the judge’s bench docket, and that in form at least a judgment of dismissal ivas entered in the judgment book. While that was called a Court Journal, the evidence shows that it was the book regularly kept for the entry of judgments by the clerk. The evidence also shows how those entries came to be made, and justifies a finding that they were made pursuant to the direction of Bledsoe, the attorney for plaintiffs in that suit. Certain sections of Mansfield’s Digest of the Statutes of Arkansas, which were not in evidence before, were put in evidence, among others, section 3910, which provides: “The proceedings to correct misprisions of the clerk shall be by motion, upon reasonable notice to the adverse party, or his attorney in the action.” Section 5103, which was in evidence before, provides: “ The plaintiff may dismiss any action in vacation in the office of the clerk on the payment of all costs that may have accrued therein.” It appears that said entry of dismissal was actually made in term time. If, however, it was made upon the direction of the plaintiff’s attorney,' it was at most an irregularity, an error of the clerk in treating such direction as one made in vacation and it would seem that it could only be corrected as provided by said section 3910. However, we prefer to put our decision of this appeal on another ground.

The important question in the case is whether this defendant was entitled to notice of the so-called “cross complaint” or “cross bill” of Ledbetter, as receiver, and, of course, that depends upon the law of the jurisdiction in which the judgment was rendered. On the formei trial the plaintiff put in evidence the opinions in certain reported cases of the State of Arkansas, the quotations from which in the opinion of Mr. Justice Clarke certainly supported the con» elusion that service of process was unnecessary to confer jurisdiction upon • the court to render a personal judgment against this defendant on the cross bill. In Pillow v. Sentelle (49 Ark. 430) the plaintiff in the original action actually answered the “cross bill,” and.the question was as to whether codefendants had to be warned or summoned to answer. In Hornor v. Hanks (22 Ark. 572) all the defendants to the “ cross bill ” answered, and the contention was simply that the “ cross bill ” was not sufficiently connected with the subject-matter of the original bill. In Heer Dry Goods Co. v. Shaffer (51 Ark. 368) the action was upon a promissory note, and the defendant pleaded in his answer what the court held to be. a statutory counterclaim or. setoff; of which, of course,- the plaintiff had to take notice. It will thus be seen that the only evidence of the law of the foreign jurisdiction, apart from the judgment itself, which this court had before 'it, consisted of dicta .of judges in eases in which the point was not even remotely involved.

On the trial now being reviewed it was stipulated that any Arkansas or Indian- Territory case might be cited without printing it in the record. The defendant, called an expert, who testified that the-so-called “cross bill” or “cross complaint” was in the nature of an original bill, and that, in the absence of an appearance, service of process was necessary to confer jurisdiction on the court to render a personal judgment; and he supported that opinion by citation of authority, to which I shall presently refer.

It is, of course, conceded that the document under which this plaintiff procured the judgment in suit was not provided for by the statutes of the State of Arkansas. (Vide Mansfield’s Digest, § 5022 et seq.) But it is claimed that the filing of a “ cross bill ” was permissible under the equity practice in the- State of Arkansas, and that is undoubtedly so. Much difficulty will be encountered in determining precisely wliat a “ cross bill ” is. The tendency in the Federal courts is -to consider “ true cross bills ” ..as defensive only, in which new and distinct matter may not. be embraced. (Bowker v. United States, 186 U. S. 135.) But the extent to which matter not connected with the original cause of action may be brought in controversy by a'“ cross bill ” or “ cross complaint”- appears to vary in different jurisdictions and to be almost a matter of discretion. Wherefore the distinction betwen a “ true cross bill ” and one in the nature of an “ original bill” has" often been overlooked with the result that there is much confusion in the decisions on the subject. The courts of Arkansas recognize the- distinction between a true cross bill,” i. e., one which is merely defensive or intended to obtain full relief touching the matter in the original bill, and one which introduces new matter and is in its nature an original bill. (Trapnall v. Hill, 31 Ark. 345.)

While, of course, the question whether a “ cross bill ” is germane to the original bill is not jurisdictional and an error in deciding it can be corrected only on appeal, the question as to the necessity of service of process is jurisdictional. Upon that question we have the uncontradicted testimony of the expert, which is supported by a decision squarely in point. (Lowenstein v. Glidewell, 5 Dillon, 325.) In that case the plaintiff tiled a bill to foreclose a deed of trust making one Partee and wife defendants. They answered, alleging that they were the owners in fee of the property and also filed a “ cross bill ” praying for the cancellation of the plaintiff’s deed of trust. Ho process was issued thereon, and the, question was whether the plaintiffs could dismiss their bill and whether the defendants were entitled to a decree pro oonfesso on their cross bill.” It was held that the bill and “ cross bill ” did not constitute one suit and that.a service of subpoena on the defendants in the “ cross bill ” or their voluntary appearance was necessary. The opinion of Caldwell, J., in that case is a plain, concise and logical statement of the law applicable to this question. He shows that service of some sort is necessary in every case and points out the single case in which substituted service may be ordered by the court, i. e., when the “ cross bill ” is wholly or partially defensive in character and where,, because of the non-residence of the" plaintiff or his departure from the jurisdiction, substituted service may be necessary to prevent a failuré of justice.

Our attention has riot been called to any case overruling that case or tending to weaken its authority.

In a nutshell the case is this.: Merchants in Hew York send bills for collection to a firm of attorneys in the Indian Territory.; the debtor makes a general assignment for "the benefit of creditors to One of said attorneys ; the other attorney brings an action .oñ behalf of the creditors to enjoin his partner from acting as assignee on the ground that" the law applicable to assignments will compel him to close out the estate at a sacrifice; the assignee and the debtors, the assignors, immediately file voluntary appearances and admit the allegations of the bill-; thereupon an order is made enjoining the assignee from acting as such and appointing him receiver; he closes out the estate and distributes the assets pursuant to the direction of the court; more than two years after the order for distribution he' files with the clerk a so-called “cross complaint” and later files what lie ■ denominates a “ cross bill ” in which as receiver, he asks for a judgment against his client for the amount paid his client on the distribution, on the ground of a fraudulent concealment by the latter of the fact that liis claim was secured, and also that he may be permitted to retain the sum of .$1,750, which lie then has in his hands belonging.to his client, collected from some outside source, and apply it on the judgment: his' partner, ivho had appeared as attorney for the plaintiffs in the original suit, files a so-called “ intervenor ” in which he asks that he be protected from any claim which liis client may make against him because of the money in his hands. And thereupon a personal judgment is rendered against this defendant, who swears that lie never heard of the “cross bill” until long after the judgment was rendered.

The facts presented to the court on the former appeal brought the case within Laing v. Rigney (160 U. S. 531). That case ■involved the jurisdiction of the Court of Chancery in blew Jersey to render a decree of divorce on a supplemental bill which was not served within the State. The only evidence bearing on the question of the blew Jersey Jaw, aside from the decree itself, was the testimony of an expert hot supported by any reference to statutes or decisions, and the court held' that the decree itself, in the absence of any statute or. decision of . the court to the contrary, was the best evidence of the. law of blew Jersey. In that case the decree recited service without the State. In this case the judgment contains this recital: “* * * And,it appearing to the Court, that the'said K. Mandell has been personally served with a copy of the original cross bill of-the said W. A. Ledbetter, and has had ample time and notice to appear and make answer unto the same,' • and, has failed to do so., * * *” The undisputed evidence now shows that recital to be false. Thus it appears that the plaintiff not only undertook to get a judgment, against his client on allegations of fraud, without giving him a day in court, hut actually imposed upon the court in order to accomplish his purpose.

It is unnecessary to determine what kind of a document the so-called “ cross hill ” is. Of course it had no relation whatever to any issue which might he presented by answer to the original bill. While doubtless the original suit was not terminated until a final judgment, the purpose of it was accomplished when the interlocutory order or decree was entered. It matters not whether that be called an order or a judgment. It granted the only relief prayed for. It is difficult to understand what reason the client of Messrs. Ledbetter & Bledsoe could have had for even suspecting that two years later a “ cross bill ” might be filed, of which he would" be bound to take notice. The “ cross bill ” was manifestly an original bill, wholly unconnected with the subject-matter of the original bill and based upon matters arising subsequent thereto. It was filed by Ledbetter, receiver, who was not a party to the suit, but who in another capacity, i. e., as assignee, had been for more than two years in default.

Of course, in a sense, the proceeding instituted by Ledbetter, receiver, was connected with the administration of the estate, which had been brought into court on the defendant’s -motion, and I assume that it could have been instituted by petition; but it was a proceeding in personam, not in rem, and was as original in its nature as though it had been an action against a debtor to collect a claim owing the estate, and virtually that is what it was.

For the foregoing reasons and for those well stated by the learned trial justice on granting the defendant’s motion, I am of the - opinion that the judgment is right and should be affirmed.

Laughlin and Dowling, JJ., concurred; Ingraham, P. J., and McLaughlin, J., dissented.