An appeal authorized by the appellant personally, and in good
faith entered in this Court in the name of his attorney and counsel
below, will not be dismissed simply because that counsel had not
authorized such entry, when the appellant, on learning of the
mistake, appears by other counsel and prosecutes it in good
faith.
The omission to describe in an appeal bond the term at which the
judgment appealed from was rendered is an error which may be cured
by furnishing new security.
D. was adjudicated a bankrupt in 1869 in California. W. then
held six promissory notes executed by him which were proved in
bankruptcy against D. D. then removed to New York. After that, W.,
by leave of court, reduced his claim to judgment in a state court
of California, the only notice to D. being by publication, and D.
never appearing. In 1875, D. petitioned for his discharge. W.
opposed it. D. moved to dismiss the objection on the ground that
the claim of W. had been absorbed in a judgment obtained after the
commencement of the proceedings in bankruptcy, which would remain
in force. The court sustained the motion, cancelled the proof of
the debt and dismissed the specification of opposition. W. then
filed a bill in equity in the Circuit Court of the United States
for the Southern District of New York to enforce an estoppel, and
to enjoin D. from asserting in defense of any suit which might be
brought upon the judgment that the debt upon which it was obtained
was not merged in it, and from denying its validity as a debt
against D. unaffected by the discharge.
Held:
(1) That the judgment was undoubtedly void for want of
jurisdiction.
Page 156 U. S. 681
(2) That nevertheless D. was estopped in equity from claiming
that it was void.
(3) That in view of the uncertainty which appeared to exist in
New York as to whether a complaint in an action at law would or
would not be demurrable, it must be held that the remedy at law was
not so plain or clear as to oust a court of equity of
jurisdiction.
(4) That the decree below restraining D. from asserting that the
judgment was invalid should be affirmed.
This was a bill in equity, filed by Angelica Wakelee, a citizen
of the State of California, against Davis, a citizen of New York,
to enforce an estoppel and to enjoin the defendant from asserting,
in defense of any suit which may be brought upon a certain judgment
recovered by Henry P. Wakelee against Davis in one of the state
courts of California, that the debts upon which such judgment was
obtained were not merged in such judgment, and from denying the
validity of the judgment as a debt against Davis, unaffected by his
discharge in bankruptcy.
The bill averred in substance that in August and September,
1869, Davis executed six promissory notes, amounting to about
$15,725, to the order of Henry P. Wakelee, and delivered them to
him, and that they subsequently became the property of the
plaintiff; that on or about September 30, 1869, Davis was adjudged
a bankrupt, upon his own petition, by the District Court for the
District of California, and the notes in question were duly proved
against his estate; that on July 8, 1873, the bankruptcy court
granted the said Henry P. Wakelee leave to bring an action upon
these notes, and that such action was begun by publication of a
summons, under the laws of the state, and without personal service
upon Davis; that on November 18, 1873, Davis not appearing and no
service having been made upon him, judgment was entered against him
in the sum of $22,760.26.
The bill further alleged that on December 23, 1875, Davis filed
in the bankruptcy court a petition for his discharge, and that
Wakelee thereupon filed specifications of opposition, which Davis
moved to dismiss upon the ground that Wakelee, subsequent to the
commencement of the proceedings in
Page 156 U. S. 682
bankruptcy, had, by leave of the court, brought suit upon such
notes, obtained judgment thereon, "and that said judgment still
stood of record in said Fifteenth District Court, and was in full
force." That such motion came on for argument, and it was there
claimed by counsel duly authorized to represent Davis that by
reason of the above facts the original debt of Davis to Wakelee,
which had been proved up in the bankruptcy proceeding, had become
merged in the judgment obtained November 18, 1873, in the state
court of California, and thereby became a new debt, created since
the adjudication of Davis as a bankrupt. That such judgment was
subsisting, valid, and enforceable, and would not be barred,
discharged, or in any wise affected by the discharge of the
defendant in bankruptcy. That by reason thereof, Wakelee had no
standing, was not interested in the bankruptcy proceedings, and was
not therefore competent to oppose the discharge of Davis. That upon
such motion, an order was made by the district court in bankruptcy
that Wakelee's proof of debt be cancelled, and his specifications
of opposition to the discharge be dismissed and set aside. That
Wakelee relied upon the claims and admissions of Davis and of his
counsel, and accepted as correct and binding the order of the
district court dismissing his opposition, and did not appeal
therefrom. That the order was accepted by Davis, who subsequently
obtained his discharge.
That the judgment was subsequently assigned to Angelica Wakelee,
the plaintiff, and in equity was of full and binding force and
validity by reason of the facts above stated, but that in sundry
action instituted upon such judgment between Davis and the then
owner of the judgment, Davis claimed and set up that the judgment
was void because of the lack of jurisdiction of the court wherein
it was entered, for the reason that he was not personally served
with process and did not appear in the action, and also pleaded his
discharge in bankruptcy as a bar to a recovery upon such judgment.
That plaintiff is about to commence an action at law upon such
judgment against Davis in the State of New York, wherein defendant
now resides, and that she is informed that under
Page 156 U. S. 683
the law of the State of New York, the facts herein set forth
cannot be pleaded in the plaintiff's complaint in aid of her cause
of action, but that such action must be brought upon such judgment
alone, and that it is necessary to allege in the complaint either
the facts showing the jurisdiction of the court or that the
judgment was
duly entered, which cannot be truthfully
done.
Wherefore plaintiff prayed for the assistance of a court of
equity to adjudge Davis to be estopped by his conduct, and that he
be enjoined from asserting that the debts proved up by Wakelee
against him were not merged in the judgment, or from asserting the
invalidity of the judgment, or that the same does not constitute a
new debt unaffected by Davis' final discharge in bankruptcy.
A demurrer was filed to this amended bill, which was overruled,
38 F. 878, and defendant answered, admitting, denying, or ignoring
the several allegations of the bill, but setting up no new
matter.
Upon a final hearing upon pleadings and proofs, the plaintiff
was awarded a decree for an injunction restraining the defendant
from asserting that the judgment of November 18, 1873, was invalid,
and did not still stand of record. 44 F. 532. From this decree the
defendant appealed to this Court. A motion to dismiss the appeal
was made and submitted.
MR. JUSTICE BROWN delivered the opinion of the court.
Motion was made to dismiss the appeal in this case, upon the
grounds (1) that the appearance of Mr. Henry A. Root as counsel for
the appellant herein, which was entered at the time the case was
docketed, was unauthorized by him, and
Page 156 U. S. 684
made without his knowledge, and (2) that the appeal bond is
defective in failing to state the term at which the decree of the
circuit court was rendered.
1. So far as the first ground is concerned, it appears that Mr.
Root, then residing in the City of New York, was solicitor for the
defendant in the court below; that he had taken no steps to sever
his connection with the case by substituting other counsel, and
that his appearance in this Court was entered at the time the case
was docketed, by other counsel, in good faith, and by virtue of a
supposed authority from him. Under these circumstances, and
inasmuch as other counsel have appeared and taken charge of the
case, the appellant should not lose his right to a review of the
case by this Court through a mistake which not only appears to have
been purely accidental, but one which could not possibly have
prejudiced the appellee. It was held by this Court in the case of
United States v.
Curry, 6 How. 106,
47 U. S. 111,
and
Tripp v. Santa Rosa Street Railroad, 144 U.
S. 126, that service of a citation on appeal upon the
solicitor in the court below was good, upon the ground that no
attorney or solicitor can withdraw his name, after he has once
entered it, without the leave of the court, and while his name
continues on the record, the adverse party has the right to treat
him as the authorized attorney or solicitor, and service of notice
upon him is as valid as upon the party himself; that even after the
case is finally decided, the court will not permit an attorney who
has appeared at the trial to withdraw his name, and thus to
embarrass and impede the administration of justice. While it does
not follow that the attorney or solicitor in the court below is
presumed to continue as such after the docketing of the case in
this Court, the fact that Mr. Root had charge of the case in the
circuit court might have induced the counsel who entered his
appearance in this Court to believe that it was authorized by him.
As the petition was signed and sworn to by the appellant in person,
there can be no claim that the appeal was taken without
authority.
2. The second ground is that the appeal bond is defective in
failing to mention the term at which the decree was rendered.
Page 156 U. S. 685
This ground is also insufficient. To a person reading the bond
there could be no mistaking the identity of the decree appealed
from. The bond is properly entitled in the cause, the name of the
court is correctly given, and there is nothing to indicate that a
decree had been rendered in any other cause between the same
parties in that court. Of a similar mistake it was said by the
Chief Justice in
New Orleans Insurance Co. v. Albro Co.,
112 U. S. 506,
112 U. S.
507:
"The better practice undoubtedly is to specify the term in
describing the judgment, but the omission of such a means of
identification is not necessarily fatal, and certainly, before
dismissing a case on that account, opportunity should be given to
furnish new security."
3. The facts of this case are not complicated nor its merits
difficult to understand. Henry P. Wakelee held six promissory
notes, executed by Davis in August and September, 1869. On
September 30, 1869, Davis was adjudicated a bankrupt upon his own
petition, in the District Court of California, and in July, 1873,
Wakelee applied for and was granted leave to reduce his claim to
judgment in the state court. On July 19, 1873, Wakelee brought suit
in the District Court of the Fifteenth Judicial District of
California, and obtained a judgment in the following November, upon
a service by publication only, in the sum of $22,760.26 in gold. As
Davis, who then lived in New York, was never served with process
and never appeared in the action, such judgment was undoubtedly
void.
Pennoyer v. Neff, 95 U. S. 714.
Subsequently, and in December, 1875, Davis filed his petition
for discharge, and Wakelee filed specifications of opposition
thereto, which Davis moved to dismiss upon the ground that Wakelee
had reduced his claim to judgment since the commencement of the
bankruptcy proceedings; that such judgment was in full force, and
(argumentatively) would be unaffected by the discharge. The court
took this view, cancelled the proofs of debt, and dismissed the
specifications of opposition to his discharge. Wakelee did not
appeal. The question before us is whether Davis is now estopped to
claim that the judgment is void for want of jurisdiction.
Page 156 U. S. 686
Defendant's principal contention is that a court of equity has
no jurisdiction of this case, not only because a bill will not lie
to enjoin a person from setting up a defense in an action which may
never be brought, but that the plaintiff may avail herself of the
alleged estoppel
in pais in any action at law she may
choose to bring upon the California judgment. Bills in equity to
enjoin actions at law are not infrequently brought by defendants in
such actions to enable them to avail themselves of defenses which
would not be valid at law. Examples of such bills are found in the
case of
Drexel v. Berney, 122 U.
S. 241, wherein a bill was sustained by a defendant in
an action at law to enjoin the plaintiff in such action from
setting up certain facts, of which it was claimed she was equitably
estopped to avail herself in such action, and in the recent case of
Wehrman v. Conklin, 155 U. S. 314,
decided at the present term, in which a bill was sustained by a
defendant in ejectment to enjoin the plaintiff from availing
himself of a deed against the use of which he was held to be
equitable estopped. Analogous cases are those in which bills have
been sustained to enable a defendant to make use of an equitable
set-off.
Rolling Mill Co. v. Ore & Steel Co.,
152 U. S. 596;
Greene v. Darling, 5 Mason 201, 209;
Howe v.
Sheppard, 2 Sumner 409;
Duncan v. Lyon, 3 Johns.Ch.
351;
Dale v. Cooke, 4 Johns.Ch. 11.
While our attention has not been called to any case wherein a
bill has been sustained in favor of a plaintiff in a proposed
action at law to enjoin the defendant from setting up a threatened
defense upon the ground that he is equitably estopped from so
doing, we know of no good reason why he should not be permitted to
do so unless his remedy at law be plain, adequate, and complete.
And therein lies the stress of defendant's argument in this
case.
We are not impressed with the strength of his position in this
connection that this is a bill to declare future rights, within the
principle of
Cross v. De
Valle, 1 Wall. 5, wherein the circuit court was
held not to have erred in dismissing a cross-bill, in which it was
called upon to declare the fate of certain contingent remainders.
The cross-bill was held to have been
Page 156 U. S. 687
properly dismissed upon the ground that the court had no power
to decree
in thesi, as to the future rights of parties not
before the court, or
in esse. The bill under
consideration, however, does not involve questions of future
rights, but of the present right of a party to set up a defense in
an action which may hereafter be brought against him.
Plaintiff's theory in this connection is thus stated in her
bill: that
"under the law of the State of New York, where said action is to
be brought, in an action at law to recover the amount due upon said
judgment the facts subsequent to such judgment, as hereinbefore set
forth, and constituting the estoppels as herein claimed and
insisted upon, may not be pleaded in the plaintiff's complaint as
or in aid of a cause of action, but that such action must be
brought upon such judgment alone, and that, by the law of the said
State of New York, it is necessary, in an action at law upon such
judgment, to allege in the complaint either the facts showing the
jurisdiction of the court in which the judgment was entered, or
that the judgment was duly entered, and that, unless this be done,
the complainant would be dismissed on demurrer. That your oratrix
is unable truthfully to allege in such complaint such
jurisdictional facts, or that such judgment was duly entered, and
that your oratrix is thus remediless in an action at law,"
etc. In support of this contention, we are cited to section 532
of the New York Code, which reads as follows:
"In pleading a judgment or other determination of a court or
officer of special jurisdiction, it is not necessary to state the
facts conferring jurisdiction, but the judgment or determination
may be stated to have been duly given or made. If that allegation
is controverted, the party pleading must, on the trial, establish
the facts conferring jurisdiction."
Appellant argues with great insistence that this refers only to
courts or officers "of special jurisdiction," and this appears to
be the implication from the language and the punctuation, although
this provision was taken from section 138 of the Code of Civil
Procedure of 1848, which reads as follows: "In pleading a judgment,
or other determination of a court, or officer of special
jurisdiction," indicating that
Page 156 U. S. 688
the words "special jurisdiction" referred only to the word
"officer."
The section, however, was probably intended to change the common
law in some particular, and as, in declaring upon judgments of
courts of general jurisdiction, it was never necessary to state the
facts showing jurisdiction, while the contrary was true with regard
to courts of special or limited jurisdiction (
Turner v.
Roby, 3 N.Y.193), the provision was doubtless intended to
apply to the latter class. But even supposing it were sufficient to
allege simply the recovery of a judgment, the judgment record, when
put in evidence, would show that personal service had never been
obtained upon the defendant, and the plaintiff would inevitably be
nonsuited. Whether the plaintiff could go still further and set up
an invalid judgment and a subsequent estoppel
in pais
appears to be, under the authorities in New York and other states,
a matter of considerable doubt.
Welland Canal Co. v.
Hathaway, 8 Wend. 480;
Gaylord v. Van Loan, 15 Wend.
308;
Hostler v. Hays, 3 Cal. 302;
Bank of Wilmington
v. Wollaston, 3 Harr. (Del.) 90;
Caldwell v. Auger, 4
Minn. 217.
So too, whether the section above quoted applies to judgments
rendered in other states seems to be doubtful, the New York
authorities being divided upon the question.
In the uncertainty which appears to exist in that state as to
whether a complaint setting forth all the facts would or would not
be demurrable, we think it may be fairly said that the remedy at
law is not so plain or clear as to oust a court of equity of
jurisdiction. It is a settled principle of equity jurisprudence
that if the remedy at law be doubtful, a court of equity will not
decline cognizance of the suit.
Boyce v.
Grundy, 3 Pet. 210;
Watson v.
Sutherland, 5 Wall. 74,
72 U. S. 79;
Rathbone v. Warren, 10 Johns. 587;
King v.
Baldwin, 17 Johns. 384;
American Insurance Co. v.
Fisk, 1 Paige 90;
Teague v. Russell, 2 Stew. (Ala.)
420;
Southampton Dock Co. v. Southampton Harbour Board,
L.R. 11 Eq. 254;
Weymouth v. Boyer, 1 Ves.Jr. 416. Where
equity can give relief, plaintiff ought not to be compelled to
speculate upon the chance of his obtaining relief at law.
Page 156 U. S. 689
4. If jurisdiction be conceded, there can be no doubt that the
court made a proper disposition of the case upon the facts. Davis
procured the dismissal of Wakelee's specifications of opposition to
his discharge upon the ground that he had a valid judgment against
him, which was still in full force, and, under the law, would be
unaffected by his discharge. The court was of the same opinion, and
dismissed the specifications. Wakelee acquiesced in this, and did
not appeal. It is true that it had theretofore been held in
California that a personal judgment obtained by service by
publication was valid.
Hahn v. Kelly, 34 Cal. 391. But the
case of
Pennoyer v. Neff, 95 U. S.
714, holding such judgments to be invalid, was not
decided until the following year. This case was afterwards followed
in California in
Belcher v. Chambers, 53 Cal. 635. The
weight of authority appears also to have been that a judgment,
obtained after the commencement of bankruptcy proceedings, merged
the debt upon which it was obtained, and was unaffected by a
subsequent discharge, though this Court subsequently held, in
Boynton v. Ball, 121 U. S. 457,
that a discharge in bankruptcy might be set up to stay the
execution of a judgment recovered against a bankrupt after the
commencement of proceedings in bankruptcy and before the discharge.
But even if Davis had been mistaken as to his legal rights with
respect to this judgment and its subsequent discharge, his
assertion that it was still of record and in full force is
nonetheless binding upon him in view of Wakelee's acquiescence in
the ruling of the court sustaining this contention.
It may be laid down as a general proposition that where a party
assumes a certain position in a legal proceeding and succeeds in
maintaining that position, he may not thereafter, simply because
his interests have changed, assume a contrary position, especially
if it be to the prejudice of the party who has acquiesced in the
position formerly taken by him. Thus, in
Philadelphia &c. Railroad
v. Howard, 13 How. 307, where a corporation sought
to defend against an instrument by showing that the corporate seal
was affixed thereto without authority, and that it was not sealed
or
Page 156 U. S. 690
unsealed, intended to be the deed of the corporation, evidence
was held to be admissible to show that, in a former suit, the
corporation had treated and relied upon the instrument as one
bearing the corporate seal. In delivering the opinion, the Court
observes:
"The plaintiff was endeavoring to prove that the paper declared
on bore the corporate seal of the Wilmington & Susquehanna
Railroad Co. This being the fact to be proved, evidence that the
corporation, through its counsel, had treated the instrument as
bearing the corporate seal, and relied upon it as a deed of the
corporation, was undoubtedly admissible. . . . The defendant not
only induced the plaintiff to bring this action, but defeated the
action in Cecil County Court by asserting and maintaining this
paper to be the deed of the company, and this brings the defendant
within the principle of the common law that when a party asserts
what he knows is false, or does not know to be true, to another's
loss and to his own gain, he is guilty of a fraud -- a fraud in
fact if he knows it to be false, a fraud in law if he does not know
it to be true. . . . We are clearly of opinion that the defendant
cannot be heard to say that what was asserted on a former trial was
false, even if the assertion was made by mistake. If it was a
mistake (of which there is no evidence), it was one made by the
defendant, of which he took the benefit, and the plaintiff the
loss, and it is too late to correct it."
So in
Railroad Company v. McCarthy, 96 U. S.
258, it appeared that defendant proved on the trial in
the court below that it was impossible to forward certain cattle on
Sunday for want of cars, and it was held to be fairly presumed that
no other reason was given for the refusal at that time, and that
the railway company could not, in this Court, set up the illegality
of such a shipment on the Sabbath under the Sunday law of West
Virginia. In delivering the opinion of the Court, Mr. Justice
Swayne says:
"Where a party gives a reason for his conduct and decision
touching anything involved in the controversy, he cannot, after the
litigation has begun, change his ground and put his conduct upon
another and different consideration. He is not permitted thus to
mend
Page 156 U. S. 691
his hold."
To the same effect are
Railroad Co. v. National Bank,
102 U. S. 14;
Daniels v. Tearney, 102 U. S. 415,
102 U. S. 421;
Everett v. Saltus, 15 Wend. 474;
Holbrooke v.
Wight, 24 Wend. 169;
Winter v. Coit, 7 N.Y. 288;
Mills v. Hoffman, 92 N.Y. 181;
Wood v. Seely, 32
N.Y. 105;
Ellis v. White, 61 Ia. 244;
Test v.
Larsh, 76 Ind. 452.
The case of
Abbot v. Wilbur, 22 La.Ann. 368, is
directly in point. This was a suit by Abbot for the purpose of
annulling a judgment obtained by Wilbur upon the ground that such
judgment had been rendered by default, and without personal service
of citation upon the defendant. Wilbur pleaded in answer to this,
and proved that, in a suit by Abbot against one Borge, the latter
had set up a reconventional demand or set-off to a large amount, in
answer to which Abbot set up that the reconventional demand had
already been reduced to judgment against him in the suit which he
now sought to annul for the want of personal service. It was held
that, Abbot having defeated a large demand against him by a plea
that there was pending against him a suit for the same demand, he
was estopped to say that the assertion was false, and that he had
never been cited in such suit.
It is contrary to the first principles of justice that a man
should obtain an advantage over his adversary by asserting and
relying upon the validity of a judgment against himself, and in a
subsequent proceeding upon such judgment claim that it was rendered
without personal service upon him. Davis may possibly have been
mistaken in his conclusion that the judgment was valid, but he is
conclusively presumed to know the law, and cannot thus speculate
upon his possible ignorance of it. He obtained an order which he
could only have obtained upon the theory that the judgment was
valid. His statement that it was in force was equivalent to a
waiver of service, a consent that the judgment should be treated as
binding for the purposes of the motion, and he is now estopped to
take a different position.
There is another circumstance, however, which shows that Davis
did not act under a
bona fide mistake of law, and that he
never intended to recognize the judgment as valid any
Page 156 U. S. 692
longer than it was for his interest to do so, since, immediately
after his discharge was obtained, he made application to the state
court in which the judgment had been rendered for an order to
vacate it upon the ground that the judgment was void by reason of
the service of summons by publication, as well as that it had been
barred by the discharge in bankruptcy. The court granted his motion
to vacate his judgment upon the latter ground, though this order
was reversed on appeal to the supreme court.
Our conclusion is that, as matter of law, appellant is now
estopped to claim that the judgment of the California court was
void for want of jurisdiction.
The decree of the court below is therefore
Affirmed.
