FEDERAL REPORTER i
vol. 48. ;
oonlpellingresponderit to share petitioner the receipts from the pool actually 'made, which included n08team-ship lines. That petitioner was 4eceived into believing that its line would be included in any pool entered into by respontlent'may be true, and still no dal;lse ofactiori could ariseinpetitiOrier'sfaVor until specific damllgesgrowing out of the deceit should be alleged and proved. In short, petitioner's 'case, viewed in its most favorable light, is one in which: respondent agreed to form a pool of the Chattahoochee river business' to northern and eastern ports, and to includepetltioner1s li l1 e iil such a' railway and stelrin-ship pool, and thenfailed and neglected to make such pool, but instead made a pool of Chattahoochee river business to southern Atlantic ports,in which business steam-ship lines could not participate, and which pool did not include petitioner's line. I· am satisfied that the conclusion reached by the master :in his report and by the court' on the hearing was correct. The rebOOring asked for is denied, with costs.
JiRsT NAT. BANK OF DANVU,LE ·fI. CUNNINGHAM. 1
(Oirctl!!t Oourt, D. KentucwY· . December 12, 1891.)
A warrant attorney contained ina note to confess judgment thereon remains in force only so long as the note is unpaid; and where the payee, after receiving satistaction thereot. fraudUlently conceals the fact, and procures 'an attorneytoappear,and oonfess judgment wi,tbout the maker's or consent, sucb appearai:1ce confers no jurisdiction on the court. and the judgment Is void.
ot
"SAME-MOTION TO VACATE-COLLATERAL ATTACK.
draws'bls motion by leave ot court, does not constitute an appearanoe to the actlOn suoh 88 will "nder the judgment valid, and he may still impeaoh it in a collateral suit.
ant, tl\e faot that he subsequently moves to vaoate the same, alId afterwards wiph-
Where il. judgment bas been trauduletltly obtained in the absellce of the defend-
The prOVision of the tederal constitution that full faith and credit shall be given In eaoh atate to the publioacts, records, and judioial' proceedings ot every other lItate gIves to a Judgment rendered in another state only suoh credit as it is en titled to in tl1at IItate; and, it it may there be collaterally attacked tor want of jurisdiction in the court rendering it, it may be so attacked in any other state.
"
ACTION ON FOREIGN JUDGMENT-FRAUD.
InA suit brought upon a jUdgment rendered in another state upon the appear. ance and confession of an attorney under a warrant contained in the note sU,ed on, the defendant.may show that the jUdgment was fraudulent and void by reason ot the fact' thaUhe warrant of attorney had expired by previous payment ilf the note
J. A. Cunningham upon a judgment 'rendered against him by a state court of Illinois. Heard on demurrer to the answer. Overruled. A. O. Ruiker and Gib8on, MashaU& UJchre, for plaintiff. Wm. Lind8ay and Humphrey & Da'L'ie, for defendant.
At Law.
Acti6n by the First National Bank of Danville, Ill., against
JACKSON, J. The plaintiff's motion to file the amended petition tendered is ll.llo\'Ved; and the second paragraph of the defendant's answer
I'IRST NAT. BA;NK OF. DANVILLE
v.
CUNNINGHAM.
511
will be treated (as it was discussed) as applicable to both the original and amended petition· in the of plaintiff's demurrer thereto. . The attention of counsel is· called to the fact that the demurrer, as filed, states that said second paragraph ()f the answer does not constitute a defense to the matters set up in the first paragraph of the petition. The demurrer was discussed as relating to the second paragraph of the petition. If the demurrer, as expressed on its face, is intended to question the suffipiency of the answer to the first count or p.aragraph of the petition, it is not wdl taken. If intended to question the ficiency of said paragraph of the answer to the second count of the petition, as assumEld at the hearing of the demurrer, plaintiff may amend the same. The court will deal with the question on the assumption that this amendment will be made. The second count·ofthepetition sets out that on November 28, 1890, the plaintiff instituted an -action· against the defendant in the circuit .' court of the eleventh judicial district of the state of illinois, in and for the county of McLean, in said state, to recover damages sustained. by it .by reason of the failure of defendant to pay certain sums of money ale leged to be due it from defendant, on certain written obligations, viz., promissory notes executed by him to plaintiff; that said circuit court of McLean county, Ill., had jurisdiction of the subject-matter of said action, and the defendant, on the 28th of November, 1890, appeared to said action by his counsel thereunto authorized by defendant to so appear for him. and filed his cognovit therein, wherein he confessed that plaintiff had sustained the damages claimed by it by reason of the breach of his promises to plaintiff as claimed in said action, and thereupon, on said day, said (,Ourt caused to be entered of record in said action a judgment in favor of plaintiff against the defen,dant for the sum of $36,301.20, the amount of damage'S so confessed, and costs expended, and that execution issue therefor. It is then ulleged that said judgment is still of record in said court, is in full force, and wholly unsatisfied. A complete transcript of the record in said action, certified and attested as required by law, is filed. as an exhibit to, and part of, the petition, which seeks to recover against defendant the amount of said judgment, with interest thereon. The amended petition states that after the rendrtion of the aforesaid judgment against him by said McLean circuit court of Illinois, at its November term, 1890, the defendant, Cunningham, Oll the 19th day of December, {being one of the days of the November term, 1890, of said COUl"t,) appeared in said court by counsel expressly chosl:'n: and authorized by him so to do, and moved said court to vacate and set JUlide the judgment rendered against him as aforesaid; that as a part of said motion he assigned, 8sreaSOllS for settillg aside and vacatingsaid judgment, the alleged facts that at the time of the entry of said judgment, and long prior thereto, the"notes upon which said judgment was rendared had been fully paid; and, second, that a large portion, towit, $25,000, notes had been paid, and said judgIPent. was entered for too much; that at the same time, to support his said motion,
512
nlDERAL REPORTER,
vol. 48.
the: .defendantifiled in said action'his own affidavit) wherein he certain" facts' showing" or tending to show, that the, notes sued on in said action, and on which judgment had been rendered, had been fully paid several years before said action was instituted; that said McLean circuit court, by the statutory laws of Illinois, had, at the time said motion was made by defendant, full control over said judgment, with power to Vacateand$etit aside, and it was its duty to set it aside on defend antis said motion, if the'reasons assigned therefor had appeared to said court to be well founded, and supported by sufficient evidence; and, if said judgment had been set aside and vacated, the defendant would have had the lawful right to defend the said action the saine as if no judgment had ever been enteredtherein;butthatdefendant, without insisting onhis said motion, l!.nd "ithout asking a hearing or decision of the same, again appeared in said court by his counsel, on the 25th day of March, 1891, and, aftetobtaining leave to do so, withdrew his said motion to "acate and set 'aside :said judgment; and the said action which had remained pending on the docket of said court on account of defendant's saidmotion was thereupon stricken from the docket. A complete transcript of the proceedings had in said action, subsequent to the rendHion of the said judgment, upon fllaid motion to vacate, and the withdrawal thereof, is filed as, apart of said amended petition. It appearsfrotn the transcript of the record filed with and -as a part of the original petition that plaintiff's action and judgment in the circuit court of, McLean county, Ill., was based upon certain notes executed by defeindant to plaintiff in 1882, 1883, and 1885; to each of which was'attached a warrant of attorney to confess judgment thereon. The form of this warrant of attorney attached to four of the'notes, maturing in 1886, was as iollows: " And to secUre tbe payment of said amount, we, or eitberof us, hereby authorize., irrevocably, any attorney of any' court of record toappear for us in s,uch court in term·time ,or vacatioD , at any time hereafter, and confess a judgment without inlavor of the bolder of this nO,te, for such amount as may appear to be unpaid' thereon, together with costs and five per cent.. of the principal amount as attorney's fees, and to waive and release all errors wbich may intervene. in sUch proceeding, and conl:lent to hhmediate execution upon such judgment." To the two notes, maturing in 1882 and 1884, the warrant of a,ttorney was as follows: "Now, therefOl'e, in consideration of tbepremises, we do make, constitute, and appoint E. R. E. Kimbrough, or any attorney of any court of record, to be our attor'ney, irrevocably, for us,and in our name, place, and stead to appear in any court of record, in term-time or vacation, or before any justice of tbe peace in any of the states or territories of the United States, at any time after said note becomes due, to waive the service of process, and confess jUdgment in' fa vor of said First Nationa! Bank of Danville, Ill., its order or upon .said pote, for the above: sum, arid jnterest thereon to the day of the entry of said jUdgment, and also to file a cO[I'Mvit fOl' the amount thereof, with an agreement therein .that no writ of error or appeal shall be prosecuted upon the judgment ental'e(!' by virtue thereof," "
FIRST NAT. ,aAN:i:
,OF
t1. CUNNINGHAM.
513
Said transcript action was ,com,menced and its declaration ,tiled Nove,mbe!; 28, 1890; that its ,attorney, J. B. Mann, made affidavit to the sigllature of James A.Cunningham to the several notes sued on and powers of attorney thereto attached; that each of said was unpaid; and that said Cunnin'gham was. still living. Following this said notes and po:wers of it is recited that defendapt, by, his attorney, came and filed in cause his certain cognovit,November 28, 1890, whicJ;1 is in the words and fig\lres following, to-wit: ' . ','.And now comes the said defendant, by E. R.;E. his says that deny the said several alleg!ltions in said declaration. nOr tbat said plaintiff has sustained damages by reason of the breach of ,the said several promises in said qeclaration mentioned to the amount of thirtysix thousand three hundred and one dollars and twenty cents, and therefore he confesses judgment in behalf,oflsaid defendant, and in favor of said plaintiff, for the said sum and cost&'of suit herein.· , "E. R. E. KIMBROUGH, Atty." Then follows the judgment entry in the cause, which recites"That plaintiff' files, its declaration, and' thereupon comes E. R. E. Kim.brough. an attorney Of this· court, and by virtue of a warrant of attorney for that purpose executed, and the execution thereof by sai,d defendant, James A. Cunningham, being duly, proJen by the affidavit of J., B. Marin, on file. herein. :waives the service of process in this cause, and confesses that said plaintiff. 'has sustained damages; by' reason of the non-perfurmance of certain promises in its declaTation, in the sum of $36,301.20. and consents that judgment may be rendered against-said defendant It is there, fore adjudged by the court that lIaid plaiptiff, the of I>anville, Ill.,' .'\' * * recov,er of and from said A. Cunningham. defendant. the sum of $36,30'1;.20, the amol,lnt, of damage\! 'so also the costs in this behalf expended,. and ithat execution issoe therefor." Executiops both c9sts were day, and were retu,rnedby the, .sheriff, 29, 1890, "No property fp\1pd." . ' To the present suit upon said judgment thus obtained the deftlndant, by way of up ,in the !lecond paragraph of his aUllwer the Pllyment apd 4ischarge of Elacb and all the notes 9n which said judgwas to the rendition thereof, un.der and by virtue of an agreement of accord and satisfaction made and entered.into between himself and, 1886, and which was fully completed on his part" and accepted on "the part of. plaintiff. The facts foith in the answeraa. constituting the accord and satisfaction of the notes on which plaintiff's judgment waa. based and rendered are, if true, clearly sufficient to establish said defense, and to show' that had no caURe of action on said notes when it commenced action and obtained said confesse!l judgment thereon in the circuit court of M:cLeancounty, 111. Said paragraph of, the answer further, alleges that said satisfaction and discharge of said notes was well known to the plaintiff !lnd to its attorney when said action was commenced thereon in said ,Illinois court; that said plaintiff and its attorney, J. B. Malln, conqealed frqm him the fact that any action was to be brought v.48F.no.7-33 ' >
.>
'.
514
FEbER-ALREPORTER,
:that they concealed from the circuit court,' of McLean 'cpunty, Ill.?'iin'cffrom 'E. R.' E. Kimbrough, procured )ind' dalled in,torepresent, defendant and Confess in hisbehalf,t1)e fact that the notes sued' on. were settled and paidj Wllfhe a residen.t,o( Louisville, Ky.? '8,li.14 was'c6fufuenced,andhad been for more than a year pti()r as plliin'tiff; its attdrney well knew; that he was not served 1Wth sununol1S Or '6th'er process;' and had no' notice or knowledge; of said" action, .and of the proceedings had and taken therein, until some,ti,¢e ';;tftersaid judgment hadbeen'Tendered,against him,and Jlnally,aQJdurnedj'thatthe entry of his appearance to' saidactloJ!@d pC ju4glliellt in his was, unauthorized': and fraudulent,and :waa.: procured bypWntiff its said attorney, MaDll', ifol! the ,purpose, of him from interposing his to any uI?on the said· notes 'or either of them;. that if said Kimbrough,' ivho lU1Rertook to act as his attorney. did not know that said notes had' been paid, the fact was fraudulently concealed froUl him by the plaintiff and its attprney; who represented to, him tbatsaid notes were still,idtie.8Ild unpard., , To.tHel!lufficiency of this answer as a defense 'to judgrheqttbe plaintiff has demurred j or, as the court p},i,derstil.nds", its to apply. " It ,is, settledJaw, tpe prpyisiqn, that full}aith and credit, shall be given in each 1sfjate to1ihe publica<;:ts, records, and, ofanyotherstllite,fUld the aot of passed tbere<if,that plaintifl"sjudgmentshouidhave the same the United States whlCh the of where Jt:;vas rendered, and that whatever wO,uld to thermn m state, and none other, cldlbe' plead:ed mdefen:se :to asui,tthereon In any other oourt within 'tbe)'lfnited Stales. Hi£mptOn v; McCon7i.el,:3 Wheat. 234; MeElmoyle v.,Cohen, 812-326; Embry v. Palmer, 107 U. 8 .. 10. &(.25.'111':' ',i'i:"" i ' ' ··' It is also setiletrWat; in il,n'IlQtionbrl'lughtil1anycourt on a Judgment of It'Cpurtldfiln:oiqe't'state, 'oftli'e' court to'renderthe or attacltedcollatel'aUyibyproof that the defendantw8s did Of, where pearance unautborized;"and thW;.eveh contraqicts In other words, all 'f!\oCt,s' necessitry to the cduTt,rendering thb jUdgment sued on juriSdlqtion, or the 'person, may be d1icted. Sneltanv. v. Whitm'an,18Wa1l; 4'57j Wall. 58; Starbuck V.' 'Murray, 5 WenQ.. 148"Sh1tmUiayv':Stalm:an"6'Wend. 447·'·1(mv.Km41 N.. 272jFergulafi'v;' Crawjo,rt1;:7()N,'y. 257'; Gilmltn vt'Gilman, i26Mass; 26; Wright v. AndreWs. 1130Mllss;'149. . ":. . "'. defense 'presented'bytlle 'answer is clearly somethitlj{more on forerror'ot prodee'dmg after JunsdlctlGIl had atUlched, or for fraud 111 Its procure-
weh
FIRST NA'l'.: BANk' oF .DANVILLE' f1. 'CUNNINGHAM.
516
merit:' The facts ail3Clolkd!by the ansWer, and for' tIt'e :purposes of the demurrOO,o'admitted ,to, be'true,..go far I beyMd,tliat.' Tbt>y impeach for want of jurisdibtion oUhe '<rourt rehdbring it oyer thepetO: son of the defendant. "flUs .18 the legal effect andoperiltionof the aUe.: gatiidos' of the answer tha t'defendant WliS' a, ahd citizenaf Kentucky;whenplaintift"8 action was commenced o:nd jridgthent taken against himr ithat he was not served with proce88,and' had: nO'n()ticeor ed'geiofthe proceeding till after oj udgment' was rendered; that the notes forming the cause ofaction/thd onlygraund· had previou$r, been fully paid Hnd dischatged j" tbatplainti'ff andl i1J8 attorney well knew this fact; ete.;nnd that tM'o:UorneywMm:theY:r>rocured to represettt the defendant, enter his appeal'ance, and confess judgment, acted without Ituthority, being induced to do so by the fraudulent conceahnent or mis· representation of the bri the of plaintitrs 'agent or attorney j These facts, if true, establish not only a want ofjol'isdiction over the d,efendant, but a fraudulent attempt- tbacquire: the satnej for it admits of noquelltion that the warrants of attorrieyattMhedtcft'1e several notes sued on in the Illinois ceurtwereonlymade to securethe payment of such notes; that they were" irrevocable "only while ,tlie notes remained unpaid; and that, upon 'thl:lpayment'and discharge of said notes, the authority conferred by said warrants of attorney thereby ceased and terminated,;,both in factanq. l4w, 8S agllinllt a holder oUbe notes who knew the fact that such notes .were satisfied and dischllrged., No other construction can: properly be' placed UpODBll.id warrEtlltsofat. torney, which, in dispensing with notice aud all oppothmity to be heard by the makers thereof, theequ rts treat with little favor, strictly; requiI:e to be followed to the lctterofth'e powers conferred. Thus in ReiclY. Southworth, 71 Wis. 288, 36 N. W. Rep. 866,it WIl$ held that a warrant ofattorney (substantially iikethe present) to confess judgment for the amount unpaid on andte authorizes confession bf judgment only for the amount actually due on such-riote. But, without dwelling ripon this aspect of the case, it'isperfeclly clear. that the answer presents a defense that would be good to a suit on the 'judgment, not only in nois, where it was rendered, but in Kentucky, where it is sued upon. Williams v. Preston, 3 J. Marsh. 608; La.tetertce v. Ja'f1Ji8, Ill. and Rea v. Jibrfest, 88 Ill. 276. In this last case it was held by thesupreme court of Illinois-::' "That; where the payee of 8' note has been paid. if he afterwards takes jUdgment thereon, under a ,power of attorney attached thereto, without the l!:nowledge or consent of the maker, it· will be 'fraudulentand voicl. and thllt he cannot enfol'ceits payment in a court by a suit on StIch jUdgmel;lt." .. Section 66, c. 110, of the Illinois statute, which authorizes the con· feSsion ora judgment in such cases. ,is 11S ,follows: U Any person. for a debt bonafide due, mat confess judgment by himself or attorney, authorized, in PI' vacation, without process.", , Tested by the foregoingprillcipleltand authorities, considered in connection with the cases bfrSptrice v. Emerine, 46 Ohio St. 438, 21 Rep. 866, and 'Sewing-Mach. <».v. Radcli,ffe,,137 U.S. U Sup.
(j16
FEDERAL REPORTER,
Ct., Rep. whicl) 8 grave doubt whether a.judgmentohtained a!l plt\\ntUf's can have any validity in that in which rendered, we entertaill ,no doubt that the defendant's answer sets up a good defense tAthe judgment as presented in the original petition. Eutitis on the part of counsel for demurrant that, conc.eding this,stUI the (l/.qV! presented by the amended petition cure all defect-a in the }Vant ofjurisdiction in the court rendering it, voluntary on the:19th of December, 1890, aJJld.!;l.ls ,on the ground that the notes on had been paid, operated to juri$dictionalquestions .orother defects in the proceeding, and the VAlid. ' 'l'he claim ia that 'the mere making of the, motions to in, as a general:appearance,to the·aption, and bound him, without any regard to subsequent proceedings. on such mption;, that the making:of said motion was not'only an appearance to the action, but operated to give validity just as effectually as though deto the, ,previously, rend;ered had been reguladyserved with process, and had personally come into coprt andconfessedtq.e judgment sued on. In support of this conof v. Cargan, 26 Kan. 104, where tep,tion:there is cited the it is Said: '''In the first place, we'remark that this appearance 'by motion, though called special, was in facta generalappeal'ance, and by it this deft'ndant ape pM-t;ed far as coull\ appear. Tlleplotion challenged the jUdgment, not mw'ely.i)pjurisdictional"b\1t also 011. nop-jurisdictional, grounds; lind wheneV;.6f sl,1ph a moti.on is made,: is general, no matter what the partiElS 'may call it in their rO.!>tion.' 'Such a general appearance to contest a on account of' will, if the grounds ther\,for are not sustained, conclude the patties as t6 any further questioning of the judgment. A' part1' cannot come ioto'oourt, challenge its proceedings on llecoun t of il'l'egand, after being Q'ferruled, be /:)eard;to say that be neVEjr was a party: in ,cql,lrt, or bound ·. If \}'asnpt)n fact a party, and properly set, aside on the g'l'!>Qnd.,of want of jul"isdictlc>nj but he'must challenge the proceedings'on that slngll:rgro,und." ," :I: : · j.'!
Thia:ruling was in A88ociationv·.Lemke, 19 Pao. Rep. 387..., In .bQth Qf these Qases, as Ilppears, the motion was acted upon and overruled by the court. In the present case there was nQ :action of the courtupoQ defendant's, motion to vacate, but the same was,;by leave of court, withdrawn by. the defendant. . This withdrawal byilea:ve of the court was had on March 25, 1891, after plaintiff had commenced its action oD';said judgment in this court. The plaintiff does not appear to have been notifiea·of said motion to vacate, and was in no way prejudiced or delayed in proceedings on its judgment. by the making ther(jof. Execution had already been issued and returned on the judgment before the motion While it was pending,'the plaintiff, on Dccembet27" 18.90, brifjgs/s1ilit on the judgment in this Gourtj and therell:fter the by leave of.thelllinois court, withdraws ihis motipu tp vacate,: and lllakel;lhis defense here:,fn. the, jUrisdie-
FIRST NAT. BANK OF DANVILLE V. CUNNINGHAM.
517
tion of his domicile. His motion to vacate, taken in connection with his affidavit filed in support thereof and the record in the case, under tbe auth0l'ity:of Reav. Forrest, 88 Ill. 276, was a valid objection totheyalidity of the judgment. In Cunningham v. Goelet, 4 Denio, 72, a party ap" peared by counsel to make objections to the sufficiency of the proceedings, and which objections were overruled. This action was claimed in subsequent proceedings .to be a waiver of such objection,. but the cou:-t, by BRONSON, C. J., said: "It would be strange, indeed, if that could be construed into a waiver of the very objection which he took." In the present case there was no adverse action on the defendant's motion to vacate, and by leave ofcourt it was withdrawn. Is such motion and its withdrawal to have the same effect as if the court had retained and overruled it? Is the party making it concluded by the judgment, ing non-action thereon by the court, except in granting leave to draw the motion? Had the defendant, by leave of court, the right to withdraw it so as to reinstate himself in the position he was in with spectto the judgment, before making his motion to vacate? These qtiestions are essentially different from those in Burdette v. Corgan, 26 Kan. 104, and are not controlled by that decision. . In Forbe8 v. H,vde, 31 Cal. 346, a motion was made and granted to withdraw an answer for one defendant. As to the effect of such withdrawal, the (JOurt says: "Upon the discovery of the mistake, upon application and It proper showing promptly made to the court, and by order of the court, the mistake wa'S corrected, <IUd the answer, and consequently tbe appearance involved in the filing, waswitbdrawn. * ,.. * The plaintiff was in no way injured." . In Creighton v. Kerr, 20 Wall. 8, it was held that a withdrawal ala general appearance by attorney for defendant, if granted upon the condition thatitis to be without prejudice to the plaintiff, does notdeptive the latier of rights founded upon the rule that a general appearance is a waiver of defect in the service of process. The intimation of thecatttt in that casEd:s very clear that,but for the condition imposed bythecou1"t in the withdrawal; a different rule would have been appliea.· In Grahamv. Spencer, 14l<'ed. Rep. 603-607, where the authorities on this question are cited and reviewed, LoWELL, C. J., says: "I have cit-ed two cases from Pennsylvania and one from,CaIifornia, and all other cases which I have seen are to the same effect, tbat the withdrawal of appearance, when there has been no plea tothe merits, or if that,too, has been withdrawn, leaves the case as it was before the appearance was entered.," He further states, very properly, that the two cases of Jones v. Andrews; 10 Wall. 327, and Harkness v. Hyde, 98 U. 8. 476, "taken together, will show that a mere appearance, without pleading to the merits, is not necessarily a submission." In Harkness v. Hyde, 98 U. 8.479, it is e'aicl that "it is only where he (the defendant) pleads to the merits inthe first instance,without insisting upon the illegality, that the objection is . deemed to be waived." In Haldem:anv. U. S., nu. 8.585, the court, in discussing, the $'object as to what will conclude a party, say: . : i .
. MiU···
REPORTER I
vol. 48·
ona right betweellthe parties be!>f the, ,and a ean·lival.l\81i.. bar to II< Ill' II< · ,but the Idea of titiitii'D'gt'Wet into luiIntentional abandonment of the 'lISserted thereby. 1'3 an aKter-thouglit. "
'f'did 1'1;0 bea term,ination
,least
b; leay.e of the is. certainly, no, decision on the right .m .. ,W.Ji. . . . . er.sy.. b.e. two een. 'PI . d!lfendant, as presuch llPpellrance to will .est.op fljqm ,apyot.4er .. or, attack upon the v.alidity In"W'opds V,. DichinsCYf1,,7 Mackey, 301, it was held t4at of and. copy. of a motion. upon the plaintiff's couns",l doell.not, whe.l'e the motion was,abandoned and never .acted on, to the necessity of process." Butnn. in; pj}int \lpon ,the questi<>n under consideration isJound In the case of Godfrey v. 40 N. W. Rep. it Wlj,s an appearancein court after the rendition of a jR<;!gmen,t which is void for ;wa,nt of jurisq.ictionis not effectual to render. the judgment valid. .' .:;. . In, Gibboney, 3 Hughes, (U. S.) 382, it was held that an appearimce .a, decreE( was rendered, entered for the purpose of moving to strike the case from the docket on the that the proceeding was ipvalid,was not such I\n appearance. as would waive defects in. the previous service, or validate a decree totally void. Upon the foregoingautborities, and upon sound principles, it cannot be held that defendant was concluded by his motion to vacate the plaintiff's judgmellt, when such motion, .before adverse action had thereon, was by leave.of the court withdrawn; nor is the proposition a sound one that, having made that motion, he thereby eleoted a remedy of relief, which he could not afterwards abandon and seek reliefelsewhere or in any other mode. Allsuming that the judgment was void for want of jurilIdiction over the defendant, three' remedies were open to· him: He cOllld make application to, the :court rendering the judgment to set it aaide; or he could the aid,ofa .court of equity to restrain its enforcement and. to vacllt,e! it, (LttndN.tm v. Farmer,7 Bush,46i Carvihers v. HartaM4.a Yerg. 306; Johnson v. Cole!iw.n, 23 Wis. 452; Con'fl,ell v. $telson, 33 Iowa, '147;) or he could await suit thereon, and attack its invalidity collaterally. , Un,til there was some adverse action against him on the question, he couldl 'l1otbe estopped from taking each ofthe foregoing remedills. of either or both of the, first two modes of attack by lElave of court,before adverse action. on the question, would not estop him! adopting ,the third mode, by way of defensive attack, as has been pursued in this case. In the opinion of. the court,the answer presents:a valid defense to the petition both original and as alP-ended; _a.nd demurrer thereto if! accordingly overruled, with costs thereof to be taxed against the plaintiff. is granted defendant, if desired"tp, file. an amended or supplemental answer to the amended petition. '. . .
:
GRISWOLD
BRAGG.
619 tta:.
GRISWOLD 'V. BRAGG
et
(Cwcuit Court, D. Connecticut. :May 27,1880.)
1.
CoNSTl'I'UTIOIUL LAW-OBLIGATION OF CONTRA.0T8-EJECTlllliNT-" BETTERMENT
Rev. St. Conn. p. 862, S 17, providing judgmeut shall not be rendered against a defendant in ejectment until the court shall have ascertained the presenl. value of improvements made in good faith,' and the amount reasonably due tor use and occupation, and until plainti:!! shall haVepa,i,d defend,ant any exces,s f the, former sum over the latter, does not impa4' the e:!!ect of the conveyances under whioh plaintUf holds, so as to violate Canst. U. S. art.t, § 10, forbiddinK the states to pau laws impairing the obligation of contracts. ' 0,
AC'l."
iii. SA.MJl:-:DUE 8.
The statl1teis not in contravention of the inhibition of the constitution of Connecticut against depriving a pe1'8on of his property without due course of law. BY JURy-AsOERTAINING VALUIii OF IHPROVIIi)fENTS.
PROOESS OF LAw.
The fact that the value of'the improvements, and of the use 'and oceupation j are to be determined by the court upon equitable principles, does not deprive the plaintiff of a right to trial by jUry, in contravention of the inhibition in the state consti. tution., '
, In Equity. Bill supplementary to an action in ejectment, for the the value of betterments and improvements. On purpose demurrer"tdbill. W. F. 'Wilcox and Richard D. Hubbard, for plaintiff. Simeon E.'Baldwin, for defendants. SHIPMAN,,J". At the September term, ,1879, of this court,the jury rendered Ii verdict, in an action of ejectment, in favor of the present defendants against the present plaintiff, that they recover the seisin and possession of an undivided fourth part of a' tract of land in the town of Chester. Upon motion Of the defendant in the ejectment suit ,judgment and were stayed until further order. He thereupon filed a supplemental bill on the !'lquity side of the court. ' This bill; after setting out the shlte statute hereinafter recited,commonly called the" Betterment AL1," 'alleges, in substance, that the plaintiff and those under whom he claims have held 'said lartdby a series of connected' conveyances since 1846, which deeds purported to convey; and were intended and belitved to coilvey, ,an absolute fee-simple, and that the plaintiff and his grantors have had uninterrupted possession of said under a like belief that they had absolute estate; and that during this time, an'd tefore the commencement of the ejectment suit, improvements of the val,ue of$10,000 ,been made on said land, by said reputed owners, iD:g6'od faith, and'lo the likebeIief; and prays that the present value ofsaid improvements; ,and the excess of the value thereof over the to the defendantS fOr the use and occupation of said prem8IDount ises, maybe ascertained"to the end that the equitable relief provided by said statllte may be granted. Tobill the defendants have demurred. Their title became, vested in them in 1878. The statute (Revision !1815; p. 362, §,I7) provides oe,' defendant, in anactlonot 1VM or whose grantors or ancestors have, in good faith, belin-