Harker v. Brink

24 N.J.L. 333

• Court: Supreme Court of New Jersey
• Decided: February 15, 1854
• Status: Published

Opinion

Chief Justice.

The first ground of demurrer assigned is, that the plea is bad for duplicity. The vice of duplicity in pleading, consists in relying upon two or more distinct grounds, either of which, independent of the others, would constitute a good defence to the action. No matters, however multifarious, will operate to make a plea double that together constitute but one connected proposition or entire point. 1 Chit. Pl. (7th ed.) 259, 261; Stephens’ Pl. 265, 274.

The rule of good pleading requires that the plea be confined to a single point, not to a single fact. Gould’s Pl. 420, 424, § 3, 9.

All the facts stated in the defendants’ plea tend to establish but one ground of defence. It is not, therefore, obnoxious to the charge of duplicity.

The principal question raised by the demurrer touches the construction and the validity of the third section of the act concerning obligations and to enable mutual dealers to discount. Rev. Stat. 802. By that section it is declared, that if upon process issued against joint debtors, any of them be brought into court, judgment and execution shall pass against them all, in like manner as if all had been brought into court by virtue of such process.

The action was commenced against three defendants, Brink, Durbin, and Tyson, as partners. The summons was served upon Brink alone, the other defendants being returned “not found.” Brink alone appears, and pleads in abatement. The material facts stated in the plea are — (1.) That the contract upon which the action is founded was made and to be performed out of this state. (2.) That at the time of making the contract, and ever since, two of the defendants, Durbin and Tyson, have resided out of this state. (3.) That the process was not served upon either of them, and that neither has appeared to the action.

The first consideration that presents itself in reference to the plea is, that the matter pleaded in defence in no wise affects the rights of the party pleading it. Brink has been duly summoned ; he appears to the action ; he has as full an opportunity of defence as if his codefendants were in court. However the statute may infringe the rights of his codefendants, it in no wise trenches upon his. It has made no change in his legal rights or liabilities. He was liable for the debt at common law precisely to the same extent that he now is. However available the defence might be to the other defendants, in an attempt to enforce the judgment against them, it does not lie in the mouth of this defendant. There is no reason why he should be permitted to evade his just responsibility upon the ground that the form of proceeding is prejudicial to the rights of his codefendants. The plea is personal to them. A defendant cannot plead a matter which in no wise prejudices his rights, but is personal and peculiar to his codefendants. Van Bramer v. Cooper, 2 Johns. R. 279.

The only ground upon which the plea can avail the defendant is, either that the case is not within the provisions of the statute, or that the statute is a nullity, and can confer no authority to render a judgment contrary to the course of the common law upon a joint contract before all the defendants are brought into court. The points relied upon in the elaborate and very able brief of the defendants’ counsel are—

' 1. That the statute authorizing judgment to be entered against parties not served with process must be construed to extend only to citizens of this state, or to parties to contracts made and to be executed within the state.

2. That if the statute be not.thus limited it is void, as opposed to natural justice and the fundamental principles of the social compact.

1. The place where the contract was made or to be performed cannot be in any wise material to the inquiry. It is true that all contracts are presumed to be made in reference to the laws of the country where they are entered into or to be performed ; but this applies to the contract itself, not to the mode of enforcing it. The law of the place where the contract is made will decide the validity of the contract, and will govern its nature, obligation, and construction. But it is universally established that the forms of remedies, the modes of proceeding, and the execution of judgments are to be regu.lated solely and exclusively by the laws of the place where the action is instituted. Story on Confl. of Laws, § 242, 263, 556.

The doctrine of the common law, to use the language of Justice Story, is so fully established on this point, that it would be useless to do more than state the universal principle which, it has promulgated, that, in regard to the merits and rights involved in actions, the law of the place where they originated is to govern; but that all forms of remedies and judicial proceedings are to be according to the law of the place where the action is instituted, without any reference to the domicil of the parties, the origin of the right, or the country of the act. Story on Confl. of Laws, § 558.

Laws, especially those regulating the rights and the duties of the citizen, are held to apply primarily to the citizens of the state by which the law is enacted. The State v. Ross, 3 Zab. 522.

But a statute regulating the forms of remedies and judicial proceedings must apply to all persons parties to the proceedings, whether citizens or aliens. The statute in question was obviously designed to apply to nonresidents. It was intended as a substitute for the common law method of proceeding by outlawry, which applied as well to nonresident foreigners as denizens. Its object being to provide a method of proceeding wherever either of several joint debtors cannot be found to be served with process, its design will be frustrated unless it extend as well to nonresident debtors as to citizens of the state. The necessity of the provision is in fact much stronger in regard to nonresident than to resident debtors. In respect to the latter, when the process cannot be served by reason of their residencfe in different counties, means of bringing them into court might, readily be devised, but no such relief is attainable in regard to nonresidents. The language of the statute, in terms, includes all joint debtors, and there is no reason why it should be restricted in its application.

The second point presents for consideration th.e validity of the statute under which the proceedings in this cause have been conducted. It is insisted that the enactment is void, inasmuch as it authorizes judgment to be entered against a defendant who has neither been served with process, nor attached by his property, nor actually appeared to the suit.

This provision was originally introduced into our law by an act of the colonial legislature, in 1771, (Allinson 353). The reason of the enactment is stated in the preamble to be, that “ creditors are often put to great trouble and difficulty in recovering debts due from joint partners, the proceedings to outlawry against persons who cannot be taken by process not being in use in this colony, and doubts have arisen whether any one joint partner is now compellable to answer the partnership debts, unless all are brought into court, which many times cannot be done.”

This act, having expired by its own limitation, was revived and continued in force by the act of 1783. Wilson 311.

The provision was incorporated, by Governor Paterson, into the act concerning obligations, and to enable mutual dealers to discount. Paterson 259. That act, substantially as it now stands upon the statute book, was drafted by him. It was reported to the legislature after he was authorized to alter and modify, as well as to revise, the statutes. The section now under consideration manifestly underwent his careful revision. The phraseology of the original statute is altered in several particulars. The substance of the enactment is unchanged, except by the substitution of the word process for proofs, near the close of the section. This was not a mistake, either in the printing or in the engrossing of the act, as was intimated by the chief justice in Ford v. Munson, 1 South. 94. The manuscript draft of the act shows that the alteration was intended. The phraseology of the act, as well as the reason of the provision, renders it, indeed, not improbable that the use of the word proofs, in the original act of 1771, was an error, and that the revisor did but restore the true reading.

{ From a period prior to the organization of the state government, this provision has remained upon the statute book. It has furnished the only mode of proceeding by which judgmerits could be recovered against joint debtors, where either of them could not be served with process. It has been constantly resorted to in practice. Questions arising upon it have been frequently before this court. Some of its provisions have been the topic of unfavorable comment from the- bench; but its validity never appears to have been drawn in question. Ford v. Munson, 1 South. 93; Gulick ads. Thomson, 1 South. 292; Bank v. Arrowsmith, 4 Halst. 284.

A provision of similar import, and almost identical in phraseology, was enacted in New York as early as 1789. 2 Laws of New York 102, § 23; 1 Rev. Laws 521. That act contained a provision that no execution should issue against the individual property of the debtor who did not appear. The same law, with some modification, has remained in force in that state until the present time. As the act now stands, it contains a provision that the judgment shall not be conclusive as to the liability of the party not served with process, but only as to the extent of the demand. 2 Rev. Stat. 377. The courts had adopted substantially the same construction of the original act. The provision has been very frequently before the courts of that state in various aspects, but it does not appear that its validity has ever been impugned. Dando v. Doll, 2 Johns. Rep. 87; Bank of Columbia v. Newcome, 6 Johns. Rep. 98; Hutchins v. Fitch, 4 Johns. Rep. 222; Taylor v. Pettibone, 16 Ib. 66; Carman v. Townsend, 6 Wend. 206; Mason v. Denison, 15 Wend. 84.

It must be a clear case, not admitting the possibility of a doubt, which under such circumstances will justify a court in pronouncing any act of the legislature inoperative and void.

/ How far the judgment will be regarded as conclusive by the courts of this state against the party who has not appeared, and whether the judgment will be enforced by the tribunals of other states, are totally different questions.

. As a general principle, a judgment against a party over whom the court had no jurisdiction will not be enforced by the tribunals of other states, especially against its own citizens. 3 Story’s Com. 183, § 1307; 2 Amer. Leading Cases 538; Hall v. Williams, 6 Pick. 232; Ewer v. Coffin, 1 Cush. 23.

And the principle has been applied to the case of a judgment rendered against joint debtors under the statute of New York. Darcy v. Ketchum, 11 Howard 165; Wood v. Watkinson, 17 Conn. 500.

But the very authorities relied upon to show that the judgment will not be enforced by the tribunals of other states, recognise its validity in the state by whose laws it is authorized. Story on Conflict of Laws, § 539; Piquet v. Swan, 5 Mason’s Rep. 35.

There is no direct authority upon the point under consideration. As has already been suggested, the validity of the act appears never to have been called in question; but that very fact, under the circumstances, affords, indirectly, the strongest authority in support of the law.

But aside from the authority afforded by the fact, that the law has been in practical operation for the greater part of a century, and its validity unquestioned by the bar or bench, upon principle the objection cannot prevail.

There is an undoubted necessity in every community for the existence of some law by which the obligations of joint debtors may be enforced, where all cannot be served with process. Every commercial community has, and of necessity must have, some provision upon the subject. What that shall be, must rest in the wisdom of the legislature. They have an undoubted right to prescribe the mode of conducting suits and the forms of judicial proceedings. They have done so, in the present instance, in terms that cannot be mistaken. Whether the provisions of the statute are the most wise or equitable that could be adopted, is not for this court to determine. If the operation of the law be harsh or unjust, it is for the legislature to apply the remedy.

In Webster v. Reid, 11 Howard 459, Justice Maclean, in delivering the opinion of the court, said, “ No person is required to answer in a suit upon whom process has not been served, or whose property has not been attached. In this case there was no personal notice nor an attachment or other proceeding against the land until after the judgment. The judgments are therefore nullities, and did not authorize the executions on which the land was sold. As applied to the faets of the case, there can be no question upon the propriety of the decision. The plaintiffs in error on the trial below offered to prove that the judgments, executions, and sheriff’s sales-were all obtained by fraud; that no process had been served upon either of the defendants in the suits in which the judgments were rendered ; and that no notice was given by publication of the institution of the suits, as prescribed by the statute. The validity of the statute prescribing the form of proceeding, or the effect of the judgment in case the statute had been complied with in good faith, were not the points before the court.

Í But the statute of this state does not dispense with the service of process, it simply provides that notice to one of several joint debtors shall be deemed notice to all who are beyond the reach of process. It is assuredly within the province of the legislature to declare what shall be competent notice of the commencement of a suit or legal service of judicial process within the jurisdiction of the state. If, in point of fact, the parties defendants are joint debtors, the justice of the provision cannot be impeached. The whole objection rests in the allegation, that the law assumes, without proof of the fact, that the defendants are in reality joint debtors. But does the law so assume? Does not the entire objection rest upon an erroneous interpretation of the statute ? The statute merely declares, that in case the defendants are joint debtors, the service upon one is valid. The whole objection is avoided by holding, as has been done in New York, that the judgment is not conclusive upon the party not served with process as to the fact of the partnership ; and it seems consistent, alike with reason and sound principle, to permit the party who has not been served with process, and has had no opportunity of defence, to show that in point of fact he was not a joint debtor, and that, consequently, the judgment, as to him, was not authorized by the statute. If in fact he was jointly indebted with the defendant upon whom process was served, there is no foundation in law or justice for the objection, that judgment was served without notice.

It may be confidently affirmed, moreover, that our statute is less obnoxious to the objection urged against it than was the common law method of proceeding to outlawry, for which the statutory proceeding is a substitute. The proceeding to outlawry was not only dilatory and expensive to plaintiffs, but harsh and oppressive to nonresident defendants. Proceeding for the recovery of the debt ceased, and no judgment could be recovered in that action until the absent defendant was pronounced beyond the protection of the law. But by that process the defendant himself was not only put out of the protection of the law, and subject to imprisonment, but his goods and the profits of his land were forfeited to the crown, and were appropriated to the payment of the debt for which the original suit was instituted. The plaintiff, therefore, recovered his debt, not by way of judgment and execution it is true, but out of the proceeds of the defendant’s property forfeited to the crown as a punishment for his contumacy in not appearing to the plaintiff’s suit, a punishment, it will be observed, in case of nonresident alien defendants, for disobedience to process of which he had never heard, and for an assumed contempt of the authority of a government to which he owed no allegiance. Matthews v. Abo, 2 Ld. Ray. 349; 2 Arch. Pr. 164; 2 Sellon’s Pr. 219, 297; Barnes 324, 325.

The fact, that the defendant was put to his election between abiding by his plea in abatement or in bar, and his electing the former, does not deprive him of the right, which he would otherwise have had, of pleading over.

There must be judgment for the demurrant.

Let the defendant answer over.