D'Arcy v. Ketchum,
Annotate this Case
52 U.S. 165 (1850)
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U.S. Supreme Court
D'Arcy v. Ketchum, 52 U.S. 11 How. 165 165 (1850)
D'Arcy v. Ketchum
52 U.S. (11 How.) 165
A statute of the State of New York provides
"That where joint debtors are sued and one is brought into court on process, if judgment shall pass for plaintiff, he shall have judgment and execution not only against the party brought into court, but also against other joint debtors named in the original process in the same manner as if they had all been taken and brought into court by virtue of such process, but it shall not be lawful to issue or execute any such execution against the body or against the sole property of any person not brought into court."
Where a judgment was given in New York against two partners, one of whom resided in Louisiana and was never served with process, and an action was brought against him in Louisiana upon this judgment, a peremptory exception in the nature of a demurrer that "the judgment sued upon is not one upon which suit can be brought against the defendant in this court" was well founded.
Congress did not intend, by the act of 1790, to declare that a judgment rendered in one state against the person of a citizen of another who had not been served with process or voluntarily made defense should have such faith and credit in every other state as it had in the courts of the state in which it was rendered.
(MR. JUSTICE McKinley did not sit on the trial of this cause in the circuit court.)
In February, 1849, there were two commercial houses, one trading under the name of A. H. Gossip & Co. in New York and the other under the name of Gossip & Co. in New Orleans. The firm of A. H. Gossip & Co. consisted of Aurungzebe H. Gossip and Joseph Calder, and the firm in New Orleans consisted of George H. Gossip and James D'Arcy.
On 4 February, 1849, the New York house drew the following bill of exchange upon the New Orleans house, viz.:
"$1,461 87/100 New York, 4 February, 1839"
"Four months after date, pay to our own order fourteen hundred and sixty-one 87/100 dollars, value received, and charge the same to account of"
"[Signed] A. H. GOSSIP & CO."
"157 Water St., New York"
"To Messrs. GOSSIP & CO."
"St. Charles St., New Orleans (Accepted)"
"Accepted: GOSSIP & CO."
"A. H. GOSSIP & CO."
"J. STEWART, 5 Platt St."
This bill appeared to have passed into the hands of Ketchum, Rogers, and Bement, and not to have been paid at maturity.
In February, 1840, Ketchum, Rogers, and Bement brought an action in the Superior court of the City of New York against the drawers and acceptors of the bill, viz., Aurungzebe H. Gossip, Joseph Calder, George H. Gossip, and James D'Arcy. The suit was brought against them jointly, and the declaration contained the money counts, together with a notice that the bill of exchange would be given in evidence under these counts.
The record did not show that any process was served upon either of the four defendants. George H. Gossip, a partner in the New Orleans house, voluntarily appeared. The record contained a suggestion that neither the declaration nor any notice of the rule to plead thereto had been served on the defendants Aurungzebe H. Gossip, Joseph Calder, or James D'Arcy. George H. Gossip pleaded the general issue, and gave notice of a setoff.
In December, 1846, the cause was called for trial, but George H. Gossip made default. A jury was empanelled to assess the damages, who gave the following verdict, viz.:
"That the said George H. Gossip did undertake and promise in manner and form as the said plaintiffs have above thereof complained against him, and they assess the damages of the said plaintiffs, by reason of the nonperformance of the said several promises in the said declaration contained, to the sum of $1,418.81, besides their costs and charges by them about their suit in that behalf expended, and for those costs and charges to six cents."
"Therefore it is considered that the said plaintiffs do recover, against the said George H. Gossip and James D'Arcy, their damages aforesaid, by the jury aforesaid, in form aforesaid, and also the sum of $52.06, for their said costs and charges by the said court now here adjudged of increase to the said plaintiffs, and with their assent; which said damages, costs, and charges in the whole amount to $1,470.93, and the said defendants in mercy &c."
"Judgment signed this 25 January, 1847."
"THOMAS J. OAKLEY"
The above judgment was rendered against D'Arcy as well as George H. Gossip, under a statute of the State of New York, which provides that
"Where joint debtors are sued and one is brought into court on process, he shall answer the plaintiff, and if judgment shall pass for plaintiff, he shall have judgment and execution not only against the party brought into court, but also against other joint debtors named in the original
process, in the same manner as if they had all been taken and brought into court by virtue of such process, but it shall not be lawful to issue or execute any such execution against the body or against the sole property of any person not brought into court."
Under this judgment against D'Arcy, Ketchum, Rogers, and Bement brought a suit in the Circuit Court of the United States for the District of Louisiana, of the following description. The suit being by petition, the whole of it will be inserted.
"The petition of Morris Ketchum, Thomas Rogers, and Edward Bement, co-partners doing business under the firm of Ketchum, Rogers, and Bement, humbly shows, that petitioners are citizens of the State of New York, and that James D'Arcy, who is a citizen of the State of Louisiana, is indebted unto petitioners in the sum of $1,418.81, with interest and costs, for this: "
"That heretofore, to-wit, on or about December, 1846, George H. Gossip and James D'Arcy, being jointly and severally indebted to petitioners in the aforesaid sum, petitioners recovered in the Superior Court of the State of New York a final judgment against said George H. Gossip and James D'Arcy for said sum of $1,418.81, with costs, which said judgment was duly and legally obtained, and was and is valid and binding upon said debtors in the State of New York, where the same was rendered as aforesaid. That said Gossip and Company was a commercial firm composed of said G. H. Gossip and said James D'Arcy, and petitioners show that in virtue of said judgment, they are entitled to recover of said D'Arcy the whole sum herein claimed; that he refuses to pay the same, although amicably requested to, all of which more fully appears by reference to the exemplified record of said judgment and proceedings, made part hereof."
"Petitioners therefore pray said James D'Arcy be cited, and that after due proceedings he be condemned to pay petitioners $1,418.81; $52.12 costs, interest at the rate of seven percentum per annum, the legal interest of the State of New York, from February 1, 1840 till paid, and for general relief."
"And as in duty,"
To this petition there was attached an exemplification of the record, with some few irregularities which it is not worthwhile to specify.
D'Arcy appeared and filed the following exceptions and answer:
"The defendant in the above suit, a citizen of the State of Louisiana residing in New Orleans, now comes and excepts
to plaintiffs' petition filed in said suit, that the same is not addressed to any court of the United States of America, and is therefore informal and should be dismissed."
"2d. The defendant excepts, that the judgment sued upon is not one upon which suit can be brought against the defendant in this Court."
"3d. The defendant excepts to said judgment, that it does not follow the verdict, that the same is not signed, and is not final, and that the same, with the record of proceedings in the suit in which the same was rendered, is not properly certified, as required by law; and the said record is upon its face incomplete."
"4th. The defendant pleads prescription."
"If the above exceptions and plea are overruled, the defendant for answer says, that he does not owe the plaintiffs in manner and form as set forth by them; that he is in no way indebted to them, and prays that he may have judgment thereof in his favor, and that said plaintiffs be condemned to pay all costs."
In May, 1848, these exceptions were argued, and the circuit court, Mr. Justice McKinley being absent overruled the exceptions and gave the following judgment:
"This cause having been argued and submitted to the court on the 8th instant, and the court having maturely considered the same under the law and the evidence, it is ordered, adjudged, and decreed, that there be final judgment rendered herein in favor of the plaintiffs, Ketchum, Rogers, and Bement, and against the defendant, James D'Arcy, for the sum of $1,418.81, with interest thereon at the rate of seven percentum per annum, from the 1st day of February, 1840, till paid, $52.12 costs of suit in New York, and the costs of this suit to be taxed."
"Judgment rendered May 17, 1848."
"Signed June 17, 1848."
"THEO. H. McCALEB [SEAL] U.S. Judge"
A motion was made for a new trial, but it was overruled.
D'Arcy then sued out a writ of error, and brought the case up to this Court.
It was argued by Mr. Coxe, for the plaintiff in error, and Mr. Ketchum, for the defendants in error.