Iverson v. Illinois Glass Co.

Bond, C. -L, delivered the opinion of the Cburfc. The appellant was sued in New York Oity, in 1922, conjointly with a corporation of New York named the “Namusa Corporation,” of which the appellant had been, for a time, president. lie was sued as guarantor of its debt. A joint summons was served on the secretary of the corporation, he turned it over to one of the attorneys for the corporation, a Mr. Nevin, the latter entered his appearance for both defendants, and for want of pleas or answers judgment was eventually entered against both, by default. This appeal arises out of a suit brought on the judgment against Iverson, in Baltimore City.

He denies the jurisdiction of the New Tork court to enter the judgment against him, on the ground that he was not a resident of New York, and that the attorney was without authority to enter an appearance for him there. He testified below that he had had no knowledge of the proceeding there until he heard of the suit in Baltimore, that on hearing of this suit he went at once to New York, and, having called Mr. Nevin’s attention to' his want of authority to enter the appearance, was assured by Mr. Nevin that he, the latter, would try to rectify his error in entering it. To this end, at the direction of Mr. Nevin, Iverson prepared and forwarded him an affidavit, or deposition, that he was never served with process and knew nothing of the case, in order that it might be presented to the New York court, in support, of a motion to strike out the judgment. The motion was made accordingly, in New York, but was denied.

After testimony to these facts in the suit on the judgment, the court below granted the plaintiff an instruction to the ⁵²⁴ jury which excluded the defense on want of authority for Mr. Hevin’s original appearance in New York, and directed them that if they found the judgment had been rendered against the defendant in New York and had not been paid, their verdict in the present suit should be for the plaintiff. And this instruction was granted, as the court below explained, on the theory that after the attack on the validity of the judgment had been made in the New York court, and an adjudication of the matter had been obtained there, the defendant could not have a second hearing and adjudication on it in the suit in Baltimore City. We find it to be correct that a person in the situation testified to- could not attack the judgment by motion in the first jurisdiction, and then, after an adjudication against him there, make the same attack in another jurisdiction. Thomas v. Virden, 160 Fed. 418 ; Burdette v. Corgon, 26 Kans. 102 ; Ederheimer v. Carson Dry Goods Co., 105 Ark. 488 ; 3 Freeman on Judgments (5th ed.), sec. 1372, pp. 2835-2836; Chicago Life Ins.

Co. v. Cherry, 244 U. S. 25 . The appellant replies, however, that the motion in New York to strike out the judgment was not his motion, but was the attorney’s own proceeding, to rectify his, the attorney’s, error. The appellant denies employing Mr. Hevin to act for him in making the motion, and views his own action in furnishing the affidavit or. deposition in support of the motion as mere aid to Mr. Hevin in the latter’s affairs. If the attorney in New York had not been, in fact, authorized to make the motion there on behalf of Iverson, the adjudication on it would not, of course, affect Iverson any more than the original judgment would.

But we agree with the lower court that Iverson’s