Pawling v. Willson , 13 Johns. 192 ( 1816 )

Platt, J.

delivered the opinion of the court.; This is an action of debt, on a:. judgment-in the superior court of .the .state .OfConnecticut, in .fayóür of Eunice Stantonr(formerly: the wife-' of John,Bird,, and, now the wife of Albert. Pawling f) against' Willson and Smith, as executors of. Bird. .The plea is non detineV, with notice that the'defendants would rely oh,the statute of limitation, to bar the claim. ■ '' • ' ■

; The material facts disclosed in-the case are, that,, in thé’ yéar 1797,'and for several years prior thereto,-John Bird, arid Eunice, his wife, resided at Troy, in this state; that, in May, 1797, Mrs. Bird left her husband at Troy, went toConnecticut,. and* upon her petition to the legislature of that state, procured a statute divorce from her husband; John Bird appearing there, by ¿óunsel, and opposing the application on its merits.

The statute granting the .divorce,'constituted Mrs. Bird sole--guardian of her two infant children'; who are admitted to b& the children of John. Bird, by that marriage.

. After the divorce, Mrs. Bird resided in 'Connecticut; and, while there, expended 617 dollars and 21 cents, in nursing, schooling, and clothing those infant children. Those expenses 'were incurred during. the lifetime of John Bird, but without any request dr interference on his part; and he continued to -reside at Troy until he died: - .

In 1808, Eunice Stanton' (formerly Mrs* Bird,, and now wife * of Albert Pawling) recovered a judgment in the superior'court óf Connecticut, against Ebenézer Willson and Benjamin Smith, ■. executors of John Bird, for the expenses of nursings schooling, 'and clothing those, two infant children.- Those executors then resided, and haVe-ever since lived, at Troy,; and never Were inhabitants oí Connecticut. ‘ Letters- of administration upon 'the will óf J,ohn-Bird were granted in this state* apd not ip ConneetipuL.

The judgment ip- Connecticut .was in'. a suit against these defendants,. as executors of John Bird,at\ñ as persons “ absent p,nd absconding out óf that,state, to farts unknown,"1 under a statute of that state, entitled, “ An act. for the -recovery of debts -0pt óf fhe .estate or eífépts of ahspnt or absconding debtors,53 v.

Thé defendants were never served with process, nor even ■notified of .the proceedings against them ; but, according to the provisions of that act, the process was served by delivering a copy to Uriel Holmes, Uriel Holmes, jun., and Seth P. Beers, respectively, then residing in Connecticut, who were averréd, in the process, to be “ debtor s'1’’ to the defendants ; and Beers is alsb styled ‘‘ attorney1'1 for the defendants.

It appears that, under authority given by that statute, Beers, one of the garnishees* appeared as attorney, and defended the suit, by pleading the general issue for these defendants; but, for aught that appears, without their consent or privity. The plaintiff, Eunice Stanton, was thereby put tb prove her demand;, and succeeded in obtaining, a Verdict and judgment for 617 dollars and 21 cents damáges, and -35 dollars and 65 cents costs, to be recovered' of the goods and estate, of the said John Bird* in the hands of his executors.5’ Execution was, accordingly, issued upon that: judgment, and the sheriff returned nulla’ bona; and1 that the garnishees refused to pay, ¡See.

A scire facias then issued against the garnishees, to show cause why they should not pay the debt and costs ;. to which they appeared and pleaded*, that they were not debtors of these defendants. Upon which fact, issue ,was joined.;. and, upon that issue, judgment was rendered in favour ' of the garnishees, .and they recovered costs. In this proceeding'by scire facias against the garnishees, it appears, that the executors of John Bird interfered so far as to employ an attorney to defend the garnishees.'

The defence set up under the statute of limitations, has been obviated by the testimony of Richard M. Livingston., We are, therefore, called upon to consider the whole grounds of this action.

1st. It is well settled, that a judgment in another state (one of the United Stales) is to be considered here as a foreign judgment, in every respect, except in the mode of proving it, which is regulated by a statuté of the United States. It is only prima facie evidence of a debt, and may be impeached, when attempted to be enforced he¡re,. as. unjust, or unfair, or irregular. Hitchcock & Fitch v. Aickin, (1 Caines,, 460.) Jackson v. Jackson, (1 Johns. Rep. 432.) Taylor v. Bryden, (8 Johns. Rep. 173.)

2d. It is also well settled; that a judgment in another state, founded on proceedings By attachment, against the- goods of the. defendant,, he not being within the jurisdiction of such State, is not éven prima.facie evidence of a debt, in our Courts. lit is regarded as a proceeding in rem, merely. To consider it as a ground of action here, per se, would be contrary to the first principles of justice;. As a proceeding-in personam, the foreign court, in such case, had no jurisdiction, .. Kibbe v. Kibbe, (Kirby, 119.) Phelps v. Holker, (1 Dal. 261.) Kilburn v. Woodworth, (5 Johns. Rep. 37.) Bissell v. Briggs, (9 Mass. Rep. 462.) Fisher v. Lane, (3 Wils. 297.) Buchannan v. Rucker, (9 East, 192.)

In this case, the defendants were domiciled at Troy, in this state, at the time of .theprbceedings against them ih Connecticut. The notice, or summons, was served on certain persons in Connecticut, whom the plaintiff chose to denominate “ debtors of the defendantsand, for aught that appears, the defendants never heard: of • those' proceedings until after the judgment against them, on which the plaintiffs now rely. It is not' true, (according to the casé,) as the counsel for the plaintiffs assumed on the argument, that the defendants-appeared and litigated the piaiiitiff’s -claim in the suit against . them, in Connecticut. The appearance was'by the garnisheés, pro for-ma, .who'were fiiithorized by the’law of that státe to enter fin fippearahce, and defend the suit for their supposed creditors;without their knowledge or consent. The record states; that ei the defendants' appeared by Seth P. Beers, their attorney,” and pleaded, &c> phut, in the absence of all other evidence on that point, this must be construed to mean, that an appearance and plea were entered by virtue of the power expressly given to' the garnishees for that purpose, by the statiite. An* “ attorney',on whom process may be served under that statute, means a general agent, or a person employed by the defendants to conduct other suits; not an attorney previously appointed by 'the defendants to appear for them in the particular suit, .whenever it might be commenced against them. There is no evidence that the defendants ever interfered or took any notice, of those proceedings, until the scire facias against the garni* shees. . Then, and not before; it appears by the testimony of Mr. Beers, they employed an attorney, and conducted the de* fence for the garnishees.

I ám, therefore, of opinion, that the. judgment against the defendants,, in personam,, was without jurisdiction, and, therefore, void. So that this ree.ord on which the plaintiffs rely, is not even prima facie evidence of a debt. - •

Whether, as a proceeding in rent, it was authorized by the statute of Connecticut (now before us) against executors or persons sued in autre droit, in any case, is very questionable. (M'Coombe v. Executors, of Hudson, (2 Dallas, 73.) Jackson v. Walsworth, (1 Johns. Cas. 372.)

Besides, it appears that judgment was finally rendered in the superior court of Connecticut, in favour of the garnishees, on the very ground that they were not debtors, or trustees, of these defendants. ■

The' provisions of the statute of Connecticut, are analogous to the proceedings by attachment against absconding debtors, according to the custom of London: and ip the case of Masters y. Lewis, (1 Ld. Raym. 56.,) it was decided that ‘‘ garnishment can only be where the garnishee is liable to the action of the defendant.”

Can it be possible, therefore, that even in Connecticut these defendants would be held, in any respect, liable, on the ground of those judgments ? It has there been judicially determined, and the records expressly show it, that the defendants were out of the jurisdiction of that state; that the process was served on the garnishees only: and will'it be contended that those proceedings can have any validity anywhere, for any purpose; when it also appears, by these very records, that neither of the persons proceeded against, as garnishees, did, in fact, stand in the relation of “ attorney, factor, agent, or trustee” of the supposed absconding' debtors ?

Such a doctrine would be unworthy of the enlightened jurisprudence of that respectable state : and, a fortiori, it would be unjust to allow such proceedings, under a foreign jurisdiction, to form the basis of a legal claim in our own courts. .

If the defendants had actually appeared in the suit against them, as absconding debtors, it would not, in my judgment, have altered the character of that récord. Such appearance and defence must be deemed to have been made merely to protect the pledge, which was the legitimate object of that proceeding.

But, admitting the record to be valid in Connecticut, as a procéeáiñg in persoham; Other important questions, have arised opon ■ the evidence- disclosed in this case. ^ .

Are we to acknowledge the validity of the divorce in Con- ■ mbticut, between John Bird an<I hi$ Wife; they being, at that time,- domiciled in this state? For, if they were not legally divorced, it follows, that the wife could riot sue her husband, nor the executors of her husband, upon any promise, express or implied, betwen the husband and wife. . - ' '

In the ease of Jackson v. Jackson, (1 Johns. Rep. 424.,) a citizen of this state married a wife in this state, and after living here together about a year, the wife left her husband, went into the state of Fermoraí, and there obtained a decree of divorce, aecordirig to the law of that state, on the ground of cruel treatment, the husband continuing to reside in this state, • This court decided that the wife could not acquire a domicil distinct from that of her husband; that the proceeding, on the part of the wife, was an evasion of the law of this state, which does not allow of a divorce, except for adultery; and that no actiomco.uldbe maintained for alimony on such decree.

The rule has since been recognised in the case of Tovey v. Lindsay,^* (1 Dow's Rep. 117.,) in the English house of lords. In that casé the ffiarriage was contracted at Gibraltar, “ with iff the pale of the English law:’’ the. parties were, afterwards, domiciled in England; -and then Went to Scotland, arid were there divorced a vinculo. Though the {louse of lords remitted the cause foi a review on the whole matter, yét they, evidently, admit the principle, that an English marriage could not be any-where dissolved, except by an act of parliament; and Lord E'ldon observed that'it bad been so decided, lately, by the unani-. mohs opinion of the twelve judges of England;^† though the parties, therefore, may have been, .át the time of the divorce, in Scotland, and domiciled there bona fide, yet such a divorce would not dissolve, a contract of marriage made in England. (See, also, Harg. Co. litt. 79, b. n. 44. Hub. de conflictu legum, Opinion of Eyre, Ch. J., 2 H. Bl. 410. 3 Mass. Rep. 158.)

But this case - is distinguishable from that of Jackson v. Jackson, (1 Johns. Rep. 424.,) in one strong feature. Here the marriage (as may fairly be inferred from the evidence) was contracted in Connecticut; and both the parties, although, domiciled in this state at the time of the divorce, appealed'and litigated the question of divorce, in Connecticut. In the, cage of Jackson. v. Jackson, the parties were not only domiciled here, but the contract of marriage was made in this state.

The investigation of this cause has led me to examine thus far the question of divorce; but whether the Connecticut decree of divorce, in the case of John Bird, is obligatory here, appears to me to be a question not necessarily involved in the decision of this cause. I, therefore, forbear to express an opinion on that difficult and important point, until a case shall require our decision upon it.

But if the validity of the divorce be admitted, then, in judgment of law, the obligation to support the children of that marriage was equal upon both the parents; there being nd special com-tract between the parties, nor any provision om that subject in the statute granting the divorce. The only provision in regard to the children (and that was made upon the express application and request of Mrs. Bird) was, that the father should be devested of the custody and control of them, and that the mother should be their sole guardian.

The mother being under equal natural obligation with the father to maintain her offspring, and no positive law of Connecticut being shown on that subject, I can see no legal ground to authorize a recovery by the mother against the father, for the maintenance of the children. At most, she can have a right tq sue him for contribution only.

Upon the whole case, I am of opinion,, that the judgment is not even prima facie evidence of a debt, being without jurisdic». tion, as a proceeding in personam: and,

2dly, Admitting the jurisdiction of the superior court of Connecticut, and admitting, also, the validity of the divorce, yet the judgment in favour of the divorced wife against the executors of her former husband, for the whole maintenance of their common children, was contrary to law.

The defendants, are, therefore, entitled to judgment.

Judgment for. the, defendants,

* May, 1813.

† Lolly's case.