Bicknell v. Field , 8 Paige Ch. 440 ( 1840 )

The Chancellor.

Two questions are presented for consideration upon this appeal : First. Whether the vice chancellor was the proper judge before whom to file the bill 1 and Secondly. Whether the case stated in the complainant’s bill is a proper subject of equitable cognizance, so as to authorize the court of chancery to grant the relief prayed 1

As neither of the appellants resided in the first circuit at the time of filing the bill, and the subject matter of the suit had no locality, and therefore could not be situated within that circuit, the vice chancellor’s jurisdiction, upon the supposition that the case is one of equitable cognizance, depends upon the question whether the cause of matter of complaint, which authorized the filing of this bill in chancery, arose within that circuit. The only fact that occurred within the first circuit was the commencement of the action of debt upon the Massachusetts judgment, by the issuing of the writ to the sheriff of New-York, and the service of such writ upon the complainant in that city. And if the complainant would have been authorized to file a bill in this court to restrain the defendants from proceeding on the Massachusetts judgment, before a suit had been actually commenced thereon in this state, then it is evident that the cause or foundation of the suit in this court did not arise in the first circuit; although the additional ground of complaint arose from the commencement of the action in the supreme court. On the other hand, if the commencement of the action of debt on the judgment, by the issuing of the writ to the sheriff of New-York, constituted this a proper case of equitable cognizance, and which it would not have been without the commencement of a suit upon the judgment here, then I think the cause or matter in equity arose in the first circuit, according to the true construction of the provision of the revised statutes on the subject of jurisdiction of vice chancellors. (2 R. S. 168, § 2, sub. 1.)

I am satisfied that this court has no jurisdiction over the parties to a judgment obtained in a sister state, to restrain their proceedings in the courts of that state to collect such judgment. (See Meade v. Merritt & Peck, 2 Paige’s Rep. 402.) If there is any ground for equitable relief in this case, therefore, it must be founded upon the fact that these defendants are endeavoring to coerce the payment of a foreign judgment, obtained by fraud, by the action of debt founded thereon in the supreme court of this state j and that the cause of complaint in the present bill, so far as the jurisdiction of the vice chancellor of the first circuit is concerned, arose, if any where, in the city of New-York, by the commencement of the action at law by writ directed to the sheriff of New-York ; and which writ was served upon the complainant there.

Upon a careful examination of the allegations in this bill, I have, however, arrived at the conclusion that the complainant has not made a case which entitles him to any relief-in this court; even if there was no question as to the local jurisdiction of the vice chancellor of the first circuit before whom the bill was filed. It is perfectly well settled, that an action commenced in another state by the attachment of property merely, without an actual service of process upon the defendant, who does not appear in the suit, is a mere proceeding in rem ; and is not even prima facie evidence of indebtedness, in an action brought upon the judgment in the courts of this state. And as there is no allegation in this bill that there was any actual service of the process upon this complainant, or that he was personally summoned to appear and defend the suit in the court of common pleas in the state of Massachusetts, the legal presumption is that he has a perfect defence at law in the action upon the judgment.

Again; if the judgment was fraudulently entered by the clerk, without the authority of the court whose judgment it purports to be, the proper remedy of the complainant appears to be to apply to that court to set aside the judgment, and to take the spurious record off of the files of the court. And the fact that these defendants have already obtained an exemplification of that record would not prevent the complainant from availing himself of the cancel-ling of the original record, as a defence to the action, upon the judgment which had thus been vacated and set aside. The constitution of the United States provides that full faith and credit shall be given, in each state, to the public acts and records and judicial proceedings of every other state. (Const. U. S. art. 4, § 1.) That provision of the constitution is as binding upon this court as it is upon the supreme court. If these defendants, therefore, have obtained a judgment in the court of common pleas of Massachusetts, against the defendant, after actual service of process upon him, the supreme court has the same right, to inquire into the regularity of the proceedings to obtain that judgment, as this court can have. And if this court is authorized to declare the judgment fraudulent and void as against the complainant, he may avail himself of the same defence in the action which has been brought against him, upon that judgment, in the supreme court; as the jurisdiction of this court is only concurrent with courts of law in cases of actual fraud. It is at least doubtful, however, whether any court in this state has any right or power to inquire into the regularity of a judgment recovered in one of the superior courts of a sister state, after a personal service of the process upon the party against whom such judgment was obtained. And it certainly would not be giving full faith and credit to the record of a judgment in a sister state, "which record was duly authenticated in the manner prescribed by the law of the United States, if the party against whom that judgment purported to have been obtained was permitted to allege and show, in the courts of another state, that no such judgment was in fact given, or authorized to be entered by the court; but that the judgment record was made up and filed fraudulently, by the clerk of the court and without authority.

I think the demurrer to the bill in this cause was well taken, and that it ought to have been allowed by the vice chancellor. The decretal order which is appealed from must therefore be reversed, and the complainant’s bill must be dismissed with costs.