Wilbur v. Abbot , 60 N.H. 40 ( 1880 )

This is a suit on a judgment recovered in the fifth district court for the parish of New Orleans in the state of Louisiana, January 21, 1867, for $23,383.64, and interest from November 1, 1862, and costs of suit.

The record shows service of notice of the original suit on one of the defendants, members of a commercial partnership in Louisiana, and no service on the other defendant.

The plaintiff filed his petition in the fifth district court, December 28, 1866, against Joseph S. and Edward A. Abbot, describing the defendants as residing in Concord in the state of New Hampshire, and as commercial partners there, doing business under the style and firm of J. S. E. A. Abbot, but then within the jurisdiction of that court, and alleging that the defendants were indebted to the plaintiff in the sum of $23,383.64 and interest from November 1, 1862. The petitioner prayed for process of citation and judgment. On the same day the following citation issued out of that court:

"Citation. Dec. 28th, 1866. I. L. Wilbur } v. } No. 16,987. J. S. E. A. Abbot.

State of Louisiana.

Fifth District Court of New Orleans, City of New Orleans.

Messrs. J. S. E. A. Abbot:

You are hereby summoned to comply with the demand contained in the petition of which a copy accompanies this citation, or deliver your answer to the same in the office of the clerk of the fifth district court of New Orleans in ten days after the service hereof.

Witness the Hon. Charles Leaumont, judge of the said court, the 28th day of December, in the year of our Lord 1866.

A. D. Bermondy, Dy Clerk."

The officer made return as follows:

"Sheriff's return to citation. Dec. 28, 1866.

Received December 28th, 1866, and on the same day I served a copy of the within citation and accompanying petition on J. S. Abbot, one of the defendants herein, personally.

Returned same day. B. Albert, D'y Sheriff."

The record of the court produced shows the following:

"January 11th, 1867. I. L. Wilbur, Syndic, c., } vs. } No. 16,987. J. S. E. A. Abbot. }

On motion of counsel for plaintiff in this case, and on showing to the court that the defendants therein have failed to answer, though duly cited, — It is ordered, that judgment by default be entered against said defendants."

The record further shows the following

"Judgment, Filed Jan'y 19th, 1867. I. L. Wilbur, Syndic, c., } vs. } No. 16,987. J.S. E.A. Abbot. }

On motion of E. C. Mix of counsel for plaintiff, and on introducing due proof of the claim of said plaintiff, — It is ordered and adjudged, that the default herein entered on the eleventh January, 1867, be now confirmed and made final, and that plaintiff I. L. Wilbur, in his capacity of syndic of his creditors and of the creditors of Wilbur and Borge, recover of the defendants, Joseph S. and Edward A. Abbot, who reside in Concord in the state of New Hampshire, and are commercial partners there, doing business under the style and firm of J. S. E. A. Abbot, in solido, the sum of twenty-three thousand three hundred and eighty-three 64/100 dollars, with legal interest from the first of November, 1862, until paid, and costs of suit.

Judgment rendered 19th January, 1867. Signed 24th January, 1867, Chas. Leaumont, Judge. A true copy. Clerk's office, March 1st, 1867. F. A. Luminais, D'y Clerk."

By the common law the joint judgment against the defendants would be void because only one of the defendants had notice of the suit. Hall v. Williams, 6 Pick. 232; Holbrook v. Murray, 5 Wend. 161; Richards v. Walton, 12 Johns. 434; Smith v. Smith, 17 Ill. 482; Mundy v. Calvert, 40 Miss. 182,190; Martin v. Williams, 42 Miss. 210; Moody, O'Farrell Co. v. Lyles,44 Miss. 121; Vandiver v. Roberts, 4 W. Va. 493; Winslow v. Lambard, 57 Me. 356; Buffum v. Ramsdell, 55 Me. 252; Hughes v. Evans, 4 Sm. M. 737; Heathman v. Hulin, 3 J. J. Marshall 432; Benner v. Welt,45 Me. 483; Hall v. Lanning, 91 U.S. 160; Langley v. Grill, 1 Col. 71; Swift v. Green, 20 Ill. 173; Williams v. Chalfant, 82 Ill. 218; Knapp v. Abell, 10 Allen 485, 490; Gamble v. Warner, 16 Ohio 371; Moss v. Gibson, 4 Ark. 427; Palmer v. Edwards, 4 Ark. 431; Wright v. Andrews, 130 Mass. 149.

This rule as a part of the general body of the common law prevails in this state, and the judgment would have been void if it had been rendered here. Rangely v. Webster, 11 N.H. 299, 307; Wilbur v. Abbot, 58 N.H. 272; Whitmore v. Delano, 6 N.H. 543, 547; Beckley v. Newcomb, 24 N.H. 359; Wright v. Boynton, 37 N.H. 9, 10, 11, 19.

The plaintiff claims that the judgment was valid because by the law of Louisiana notice of the suit given to one member of the defendant firm was sufficient: and he cites and relies upon Art. 182 of the Louisiana Code of Practice of 1853, which is, — "Art. 182. Nevertheless, if the defendants are husband and wife, or minors, interdicted or absent persons having the same curator, or persons represented by the same attorney in fact, or partners of the same firm, or members of the same corporation, it will be sufficient to deliver one citation and one single copy of the petition to the person representing such defendants."

This statute sustains the plaintiff's contention on this point, and shows that the judgment (on which this suit is brought) is valid in Louisiana. But it is nevertheless invalid in New Hampshire because it is invalid by New Hampshire law, would be invalid if it had been rendered in New Hampshire, and because the constitution and laws of the United states give it no more force or effect than it would have if it had been rendered here. Thurber v. Blackbourne, 1 N.H. 242; Whittier v. Wendell, 7 N.H. 257; Starbuck v. Murray, 5 Wend. 148; Holbrook v. Murray, 5 Wend. 161; Shumway v. Stillman, 4 Cow. 292; Shumway v. Stillman, 6 Wend. 447; Hall v. Williams, 6 Pick. 232, 246; Bissell v. Briggs, 9 Mass. 462; Flower v. Parker, 3 Mas. 247, 251; Bryant v. Ela, Smith (N.H.) 396; Phelps v. Holker, 1 Dall. 281; Kilburn v. Woodworth, 5. Johns. 37; Kibbe v. Kibbe, Kirby (Conn.) 119; Fenton v. Garlick, 8 Johns. 194; Fisher v. Lane, 3 Wils. 297, 302, 303; Buchanan v. Rucker, 9 East 192, 1 Camp. 65; Buttrick v. Allen,8 Mass. 273; Robinson v. Ward, 8 Johns. 86; Mills v. Duryee, 7 Cranch 481, 486; Borden v. Fitch, 15 Johns. 121; Benton v. Bergot, 10 Serg. R. 242; Aldrich v. Kinney, 4 Conn. 380; Curtis v. Gibbs, 1 Pen. (N.J.) 377; Rogers v. Coleman, Hardin (Ky.) 413; Gleason v. Dodd, 4 Met. 333; Long v. Long, 1 Hill 597; Downer v. Shaw, 22 N.H. 277; Wright v. Boynton, 37 N.H. 9; Pawling v. Bird, 13 Johns. 192; Hoxie v. Wright, 2 Vt. 263, 268; Earthman v. Jones, 2 Yerg. 484; Miller v. Miller, 1 Bailey (S.C.) 242; Holt v. Alloway, 2 Blackf. 108; McElmoyle v. Cohen, 13 Pet. 323; Leith v. Leith, 39 N.H. 20, 42; Russell v. Perry, 14 N.H. 152; Morse v. Presby, 25 N.H. 299, 303; Don v. Lippman, 5 C. F. 1; Bank of Australasia v. Nias, 16 Q. B. 717; Smith v. Nicolls, 7 Scott 147, 5 Bing. (N.C.) 208; Schibsby v. Westenholz, 6 L. R. Q. B. 155; Price v. Hickok, 39 Vt. 292; Harrod v. Barretto, 2 Hall (N.Y.) 302; Wilson v. Niles, 2 Hall (N.Y.) 358; Steel v. Smith 7 Watts S. 447; Starkweather v. Loomis, 2 Vt. 573; Roberts v. Peavey, 27 N.H. 477, 492; Carleton v. Ins. Co., 35 N.H. 162, 166; Judkins v. Ins. Co., 37 N.H. 470, 480; Harding v. Alden, 9 Me. 140; D'Arcy v. Ketchum, 11 How. 165; Thompson v. Whitman, 18 Wall. 457, 469.

After this judgment, valid in Louisiana by the laws of that state, was rendered, the plaintiff in another suit in Louisiana, brought by the defendants in the third district court of New Orleans, endeavored upon a reconventional demand to recover a second judgment against these defendants on the same cause of action on which the first had been rendered, or, what is in effect the same thing, endeavored to defeat a claim of the defendants, and obtain judgment for the balance. La. Code of Practice, 1853, Art. 371.

The first judgment being valid in Louisiana by the law of that state, these defendants had the right to set it up in Louisiana to defend themselves against the wrong of a second judgment for the same cause which the plaintiff attempted to maintain. These defendants exercised that right and prevented the plaintiff's obtaining such second wrongful judgment by proving the existence of the first judgment. That first judgment was a valid, existing judgment in Louisiana; and these defendants alleged and proved nothing but the truth for rightfully defeating the fraudulent attempt of the plaintiff to obtain two judgments for a single cause of action. In thus necessarily, truthfully, and properly defending themselves against the wrongful rendition of a second judgment, these defendants neither did nor said anything that can estop them to prove or assert the truth in this suit. In such a case as this, the rightful assertion and proof of the truth is not an estoppel. The truth which they asserted, and which they were by the plaintiff's attempted fraud compelled to assert in self-defence in the Louisiana court, was the existence of a Louisiana judgment, not as a judgment valid by the laws of some other American state or some Foreign country, but as a judgment valid by the law of Louisiana. They did not, either expressly or by implication, assert that it was valid in any jurisdiction except that of Louisiana. Its validity or invalidity in any other jurisdiction was in the Louisiana suit a matter wholly irrelevant and immaterial. If they asserted a judgment rendered on sufficient notice, the notice asserted was a notice sufficient by the law of Louisiana to make the judgment valid in Louisiana; not a notice sufficient by the laws of every one of thirty-seven other states for the validity of the judgment in each of those states. By the truthful assertion and proof of the existence of a judgment, valid in Louisiana, they are not estopped to truthfully assert in other states that the validity of the Louisiana judgment in Louisiana is due to the peculiar law of Louisiana which has no extra-territorial force. Louisiana has no more right to enact (which it has not attempted) that the first judgment is valid in New Hampshire, than New Hampshire has to enact that it is invalid in Louisiana.

But the plaintiff claims that it has been decided in Louisiana that the defendants' are estopped to deny the validity of the first judgment. In a nullity suit brought by these defendants in the fifth district court of New Orleans, to have this judgment declared null and void for want of service on either of the defendants, it was decided that they, having defeated the attempt of this plaintiff to obtain a second judgment for the cause on which the first was rendered, by setting up the first judgment as valid, were estopped to deny the validity which they had once successfully asserted. Abbot v. Wilbur, 22 La. An. 368. They had successfully asserted the truth that there existed in Louisiana a judgment, valid by the law of that state, and therefore sufficient to prevent the rendition in Louisiana of a second judgment on the same cause, and they were held to be estopped to deny that the first judgment was valid by the law of Louisiana.

In all the Louisiana suits the question of the validity of the first judgment necessarily depended upon Louisiana law, and not upon the law of any other jurisdiction. No question of the validity of that judgment in any other state was or could be raised, and no such question was considered, or was or could be decided.

If the Louisiana court had decided that these defendants, by necessarily asserting the truth in that state, were estopped to assert the truth in this case in New Hampshire, a precedent would have been made for our deciding questions arising in the Louisiana court, — a precedent for throwing into inextricable confusion the law of the inter-state effect of judgments. It could not have occurred to that court that these defendants were bound either to submit to the rendition on a single cause of two Louisiana judgments, valid in Louisiana, or be estopped from asserting in all other jurisdictions of the country the truth in regard to the first judgment. That is an unjust and illegal dilemma in which the legislature and courts of Louisiana could not put, and have not attempted to put, the defendants.

The estoppel now set up by the plaintiff is one branch of that impossible alternative. The res adjudicata is the Louisiana decision that these defendants asserted that the first judgment was valid in Louisiana by the law of that state, and were by Louisiana law estopped to assert the contrary. The defendants do not now assert the contrary. They assert that, if in Louisiana, by the law of that state, the first judgment is valid with notice given to one of the defendants, it is not valid here; and that if they are estopped to assert that it is invalid in Louisiana upon the law of Louisiana, they are not estopped to assert that it is invalid in New Hampshire by the law of New Hampshire. The Louisiana court did not and could not decide that they are estopped to assert its invalidity upon the law of New Hampshire.

The record showing in the joint judgment the fatal defect of notice to one only of the defendants, there must be

Judgment for the defendants.

Foster and Clark, JJ., did not sit: the others concurred.