Citation Numbers: 23 F. 21
Judges: Wheeler
Filed Date: 10/15/1884
Status: Precedential
Modified Date: 9/9/2022
This is an action of debt on a judgment recovered in the circuit court of the United States for the district of Kansas for $9,337.16 damages, and $108.30 costs. The defendant has pleaded five pleas, in the last of which he alleges that he was not a citizen of Kansas, nor in Kansas, at the time of the commencement of that action, nor at any time afterwards; that no process in it was ever served upon him; that he never authorized or employed any attorney or other person to appear for him and in his behalf, nor authorized or empowered any person to employ or procure an attorney or other person to appear for him and in his behalf, and that no attorney or
If he was heard there upon the trial lie has no right to be heard again upon the questions involved except upon appeal, but is bound. That he had notice of the suit, however full and formal, out of the jurisdiction would not bind him. He could not be compelled to appear by anything done without the jurisdiction. Bischoff v. Wethered, 9 Wall. 812. Therefore taking his deposition would not bind him. The other party had the right to take it in order to obtain a judgment to bind the property attached, but he could not be made a party personally in that maimer; if he could, the jurisdiction of courts could be extended without their territorial limits by merely resorting to that proceeding.
The suit -was founded upon an alleged liability of the Adams bank, a state bank of Kansas, of which the defendant and Simonds mentioned in the telegram and others were stockholders, to the plaintiff, and a statute of Kansas making stockholders personally liable on the dissolution of the corporation. The statute also provided for contribution between stockholders when any -were made to pay. Comp. Laws Kan. 233, § 44. The defendant testifies that he understood that there was litigation going on in Kansas in respect to the liability of the Adams bank to the plaintiff, but not that it was against him personally, and that some of the other stockholders wore defending it, and that the telegram referred to that litigation; and he testifies that the money which lie sent was contributed by other stockholders residing near him as well as himself, and sent to one of those whom he understood to be defending to aid in paying the attorneys, and not to the attorneys as Ills attorneys. No ono is called to contradict this testimony, and there is nothing opposed to its correctness unless the circumstances contradict it.
.From the circumstances it is apparent enough that the other stockholders, or some of them, employed the attorneys to appear and defend this case on account of their interest in the result; and from liis testimony, that he did not know that his personal liability was being passed upon, although he knew that what might affect him ultimately was involved. Although he knew of, and was willing-to and did contribute to, the common defense, he docs not appear to have in any way ratified or confirmed the submission of his personal liability to the judgment of the court. As the plaintiff had, and was entitled to, no proceedings to compel Ms personal appearance, it could not be had without he knowingly and voluntarily yielded it, and he could not ratify the assumption of others to appear and submit his case for him without knowledge of what they had assumed
The testimony in the case was closed on February 5th, except that there was reserved to the plaintiff the privilege of having the testimony of a witness who was sick and unable to attend, taken by the court at the residence of the witness on the next day, to the same effect in all respects, by consent of the parties, as if taken in court on that day. The death of the defendant was suggested on the opening of court the next day as having taken place after adjournment on the evening before. The plaintiff objected to anything further being done, but waived the taking of the testimony of that witness. The whole case was in the hands of the court during the life of the defendant. The arguments of counsel are in aid of its consideration.
In Broas v. Mersereau, 18 Wend. 653, a verdict was taken after the death of the party. In Trelawny v. Bishop of Winchester, 1 Burr. 219, judgment was rendered as of a time prior to the death, which occurred while the case was pending for argument. This was a common proceeding in the English courts from early times. Bac. Abr. “Abatement,” F. And it is said by Metcalf, J., in Springfield, v. Worcester, 2 Cush. 52, to be the common course when an action which would fail by the death of either party before judgment is continued for argument or advisement, whether there has been a verdict or demurrer or agreed statement of facts, and one of the parties afterwards dies, to enter judgment as of a former term. This is all in the same term, and it seems proper that the case should be argued, considered, and judgment rendered as of the day in the term when the last of the evidence was submitted.
Judgment for defendant as of February '5th.