Holbrook v. Murray

5 Wend. 161

• Court: New York Supreme Court
• Decided: July 15, 1830
• Status: Published

Opinion

By the Court,

Marcy, J.

The first and second pleas are bad for the reasons assigned in adjudging the first pleas insufficient in the case of Starbuck and others v. Murray, ante, 148. The third plea, however, appears to me to contain enough to shew that the court in Massachusetts had not jurisdiction of the person of J. B. Murray. The difference between this plea and the second plea in Starbuck and others v. Murray is, that this plea does not deny that the defendant did not either in person or by attorney appear to the suit; but seems to me that the allegations that no process was served on him, and that he had no notice of the pendency or prosecution of the action, are equivalent to a denial of appearance in person or by attorney.

The facts stated in this plea being admitted by the demurrer, the defence of a want of jurisdiction as to the person of this defendant is established. As to him the judgment ip not conclusive; it is not even evidence of a demand; it is a nullity. What effect has this on the other defendants whose plea does not afford any defence ? The judgment is entire, and if void as to one defendant, where there are several, it is void as to all. This precise point was decided in Hall v. Williams, 6 Pick. R. 247, and in Richard v. Walton, 12 Johns. R. 434.

Judgment affirmed.