'OITIZENS' BANK 11. IlBOOD.
It is too plain for any argument that a. tax title, acquired by a sale in pursuance of this aet of 1873, cannot be supported as a sale held
in oonformity to the provisions of the previously existing tax law!> found in the Code, (T.& S. Ed.) §§ 612 et seq. The act of 1873 was intended to be a radical change of the mode of selling lands for taxes, and it is vain to seek to support the defendants' title by the former acts, which were in no sense complied with, nor intended to be, in making the sale. It is not necessary to decide any other question argued. The tax deed of the defendants cannot stand if the act under which the proceeding took place is void. The case having been submitted without a jury, there must be a judgment for the plaintiffs. So ordered.
CITIZENS' BANK V. BROOKS.
(Oirouit Court. D. Vermont.
October Term, 1884.)
ACTION ON JUDGMENT OBTAINED IN ANOTHER STATE-AUTHORITY OF ATTORNEY TO APPEAR FOR DEFENDANT.
In an action in a circuit court on a judg-ment obtained in another state, the record of the appearance of attorneys of the court for the defendant is not conclusive upon him, and he may show that they had no authority to act in his behalf. 2. SAME - RENDITION OF PERSONAL J UDGMEN'l' - KNOWLEDGE OF DEFENDANTTAKING DEPOSITION.....,PAYING OOUNSEL.
Taking the deposition of a defendant, who is a citizen of another state, by the plaintiff, in an action under the Kansas statute to enforce the liability ot stockholders, will not render the judgment obtained personally binding on such defendant, although he contributed to the common defense afterwards by furnishing funds to pay counsel.
PRACTICE-RENDITION OF JUDGMENT-DEATH OF DEFENDANT.
When the whole case is in the hands of the court, and before its decision IS rendered the defendant dies, a judgment may he entered as of the day in the term when the last of the evidence was submitted.
Martin d Eddy, for plaintiff. Harkins d Stoddard, for defendant. WHEELER, J. This is an action of debt on a judgment recovered in the circuit court of the United States for the district of Kansas for $9,337.16 damages, and $108.30 costs. The defendant has pleaded five pleas, in the last of which he alleges that he was not a citizen of Kansas, nor in Kansas. at the time of the commencement of that action, nor ll.t any time afterwards; that no process in it was ever served upon him; that he never authorized or employed any attorney or other person to appear for him and in his behalf, nor authorized or empowered any person employ or pIOcure an attorney or other person to appear for him and in his behalf, and that no attorney or
other personevel' had any authql'ity to appear for him and in his behalf in that suit; and that he never entered his appearance therein in person. To this plea the plaintiff replies that the defendant.had knowledge of the commencement and pendency of the suit, and did by his agents procure attorneys of the court there to appear for him and in his behalf in that cause, and that he did, by those attorneys, voluntarily appear in said cause and defend it, and after the judgment had been rendered, he paid the attorneys for their appearance in the cause and for defending it, and ratified and confirmed their appearance in and defense of it. The defendant traversed this replication, and issue to the country is joined upon it. The other pleadings are disposed of in such manner as to leave this one for trial, And it is tried by the court upon waiver in writing of a jury. The record shows service by attachment of property of the defendant as a non-resident of Kansas only, and an appearance and answer for the defendant by the attorneys named in the replication. The plaintiff claims that the record of the appearance in the cause of attorneys of the court for the defendant is conclusive of their right to appear for him, and that evidence to the contrary should not be considered. There are cases which perhaps go to this length. Mills v. Duryee, 7 Oranch, 481; Lapham v. Briggs, 27 Vt. 26. But it is now well settled in the courts of the United States that want of jurisdiction to bind the person may be shown in an action upon the judgment against the person. Thompson v. Whitman, 18 Wall. 457; Knowles v. Gas-light Co. 19 Wall. 58; Hall v. Lanning, 91 U. S. 160; Graham v. Spencer, 14 FED. REP. 603. The fact that the attorneys entered an appearance for the defendant is, perhaps, conclusively shown by the record, but that they had authority in fact, or any more than that they assumed to have authority, is not shown at all by it. The presumption that all was rightly done arising from their being officers of the court, is admitted to, and doubtless does, cast the burden upon the defendant of showing that the appearance was without his authority. The defendant testifies distinctly that he never employed, nor authorized the employment of any attorney to appear for him in the case, and there is no proof that he ever did. Three attorneys appeared; one at first, and two others afterwards. The testimony of the last two shows that they were engaged by the first, and he is dead, and nothing is produced to show that the defendant ever had any communication with him. A deposition of the defendant was taken by the plaintiff in Vermont, where the defendant resided, on notice accepted by the attorneys in Kansas, and filed in that cause, in which it is stated that the deponent "is the defendant" in the cause. After the judgment was rendered the attorneys telegraphed to the defendant: "Simonds writes refusing to be responsible for fees. Are we to be paid for services, and by whom? Answer definitely, quick." In a few days he He answered: "We expect to pay our sent $300 for them.
The plaintiff relies upon this to sustain the allegation of the replication that he knew of the suit, and of the employment and appearance of the attorneys in it, and ratified 'their doings, and paid them for their services. The substance of the replication is that he voluntarily submitted himself to the jurisdiction of the court, and that the cause was thereupon tried. If he was heard there upon the trial he has no right to be heard again upon the questions involved except upon appeal, but is bound. That he had notice of the suit, however full and formal, out of the jurisdiction would not bind him. He could not be compelled to appear by anything done without the jurisdiction. Bischoffv. Wethered, 9 Wall. 812. Therefore taking his deposition would not bind him. The other party had the right to take it in order to obtain a judgment to bind the property attached, but he could not be made a party personally in that manner; if he could, the jurisdiction of courts could be extended without their territorial limits by merely resorting to that proceeding. . The suit was founded upon an alleged liability of the Adams bank, a state bank of Kansas, of which the defendant and Simonds mentioned in the telegram and others were stockholders, to the plaintiff, and a statute of Kansas making stockholders personally liable on the dissolution of the corporation. The statute also provided for contribution between stockholders when any were made to pay. Compo Laws Kan. 233, § 44. The defendant testifies that he understood that there was litigation going on in Kansas in respect to the liability of the Adams bank to the plaintiff, but not that it was against him per· sonally, and that some of the other stockholders were defending it, and that the telegram referred to that litigation; and he testifies that the money which he sent was contributed by other stockholders resid· ing near him as well as himself, and sent to one of those whom he understood to be defending to aid in paying the attorneys, and not to the attorneys as his attorneys. No one is called to contradict this testimony, and there is nothing opposed to its correctness unless the circumstances contradict it. From the circumstances it is apparent enough that the other stock· holders, or some of them, employed the attorneys to appear and de· fend this case on account of their interest in the result; and from his testimony, that he did not know that his personal liability was being passed upon, although he knew that what might affect him ultimately was involved. Although he knew of, and was willing to and did contribute to, the common defense, he does not appear to have in any way ratified or confirmed the submission of his personal liability to the judgment of the court. As the plaintiff had, and was entitled to, no proceedings to compel his personal appearance, it could not be had without he knowingly and voluntarily yielded it, and he could not ratify the assumption of others to appear and sub· mit his case for him without knowledge of what they had assumed
to do for him. This is not intended to imply that what was done without jurisdiction over his person could be made binding upon him by any ratification after the judgment. Jurisdiction over the person at the time of the judgment is necessary to its validity as a personal judgment. A defendant might probably compensate anyone who had, without his knowledge, undertaken the defense of a suit against him which might bind his property and failed, and not subject him· self to the consequences of making the judgment bind him personally, when before it would only bind his property. The issue joined upon the replication to the fifth plea is found for the defendant. The testimony in the case was closed on February 5th, except that there was reserved to the plaintiff the privilege of having the testimony of a witness who was sick and unable to attend, taken by the court at the residence of the witness on the next day, to the same effect in all respects, by consent of the parties, as if taken in court on that day. The death of the defendant was suggested on the opening of court the next day as having taken place after adjournment on the evening before. The plaintiff objected to anyt,hing further being done, but waived the taking of the testimony of that witness. The whole case was in the hands of the court during the life of the defend· ant. The arguments of counsel are in aid of its considtlration. In BrDa,s v. Mersereau, 18 Wend. 653, a verdict was taken after the deathof the party. In T1'elawny v. Bishop of Winchester, 1 Burr. 219, judgment was rendered. as of a time prior to the death, which occurred while the case was pending for argument. This was a COllmon proceeding in the English courts from early times. Bac. Abr. "Abatement," F. And it is said by METCALF, J., in Springfield v. Wm'· cester, 2 Cush. 52, to be the common course when an action which would fail by the death of either party before judgment is continued for argument or advisement, whether there has been a verdict or demurrer or agreed statement of facts, and one of the parties afterwards dies, to enter judgment as of It former term. This is all in the same term, and it seems proper that the case should be argued, considered, and judgment rendered as of the day in the t.erm when the last of the evidenc'e was submitted. Judgment for defendant as of February 5th.
ldEALE"X V. HETBOPOLITU LIF.Ill INS. 00.
MEALEY v. METROPOLITAN LIFE INS. CO.
(Circuit Court, D. Rhode Island. February 26, 1885.)
PRACTICE-MoTION TO FILE INSTHUMEN'rS PLEADED IN DEFENSE IN CLERK'S OFFICE-Pun. S'r. R 1. c. ::114, § 45.
In an action on a policy of life insurance defendant filed several pleas, setting out that the statements and answers to certain questions contained in application and medical examination which formed part of the contract of Insurance, were untrue, and the particular statements so alleged to be untrue, and making profert of the application and medical examination. Plaintiff moved for an order on defendant to file the application and medical examination in the clerk's office. Held, that the motion could not be granted.
Motion for Production and Filing of Certain Papers. W. F. Angell and C. Bradley, for plaintiff. W. G. Roelker, for defendant. CARPENTER, J. 'rhis is an action on a policy of life insurance; and the defendant files several pleas setting out that the statements and answers to certain questions contained in the application and medical examination, which form part of the contract of insurance, are untrue, and specifying the particular statements so alleged to be untrue, and making profert of the application and medical examination. The plaintiff now moves for an order on the defendant to file the application and medical examination in the clerk's office. The motion is not properly framed as a demand of oyer, since the order granting oyer would provide only that the plaintiff have a copy of the instrument, and not that the original instrument be put on file. The motion has, however, been argued as though it were a proper demand of oyer, and in that light I have considered it. In the first place, it is to be noted that the plea does not show that the agreement is under seal, andl'consequently, profert was unnecessary, and oyer cannot be demanded. The authorities cited by the defendant abundantly sustain this position. 1 Chit. PI. *430, *431; Sneed v. Wister, 8 Wheat. 690. Indeed, the order here af!ked seems to be prohibited by implied exclusion, by the twenty-third law rule for this circuit, which reads as follows:
"Oyer of all spe(lialties declared on may be had on motion at the return term, but not afterwards, unless by special order of court, on affidavit of special cause."
It was, however, the practice of the English courts, and is the practice with us, in cases where oyer is not demandable, but in which the court can see that a knowledge of the instrument in question is proper and necessary for either party, to make an order that he have a copy. But in the practice of the courts of Rhode Island, which is followed by this court, the proceeding to be taken in order to obtain an order of this kind is prescribed by the law of the state in Pub. St. c. 214, § 45, which is as follows:
Whenever either party to any proceeding at law or equity in the supreme court, or to any proceeding at law in the court of common pleas, shall set