Writ of Error. Practice, Civil, Writ of error, Report, Acceptance of service, Appearance. Partnership. Attorney at Law. Evidence, Of death. Jurisdiction. Estoppel. Judgment. Res Judicata.
The proceedings upon a writ of error are according to the common law except as modified by usage.
Upon a report by a single justice of this court of his findings of fact and rulings of law upon a writ of error, there can be no review of questions of fact.
Upon a writ of error assigning that a judgment in tort should be reversed because the court never had jurisdiction over two of four defendants named therein, a determinative question was, whether the four defendants were partners at the time of the bringing of the action. The case was heard by an auditor. The evidence was conflicting and would have warranted a finding either way. The auditor found that, previous to the bringing of the original action, the two plaintiffs in error over whom, it was contended, the court did not acquire jurisdiction, had retired from the partnership. The case was heard by a single justice upon the pleadings and the auditor's report. He adopted the findings of the auditor and reported the case to the full court for determination. Held, that the finding above described was a determination of a question of fact, which, upon the record, could not be reviewed.
A court acquires no jurisdiction over a defendant where no process has been served on him and an attorney at law without authority accepts service of process and enters an appearance for him in court.
If, in an action at law against several defendants, an attorney at law files an appearance card headed with the name of the plaintiff and of only one defendant, and bearing, above the attorney's signature, the statement, "In the above action I appear for Defendant," it cannot be said that this is a general appearance for all of the defendants.
The fact that in 1910 four partners filed with the clerk of a municipality the certificate required by St. 1907, c. 539, stating their names as partners, does not estop two of the four from asserting, in a writ of error to set aside a judgment obtained in an action of tort brought against the four as partners two years after the filing of the certificate, that, before the tort complained of and before the bringing of the action, they had withdrawn from the partnership.
A plaintiff in error, the administrator of the estate of a Greek, who was one of four defendants against whom a judgment in an action of tort for personal injuries and causing death had been obtained, contended that the judgment should be set aside because at the time of the verdict and judgment his intestate was dead and no suggestion to that effect had been made upon the record and no administrator of his estate had been summoned to defend. There was evidence tending to show that late in 1912 the intestate left this country for Greece for the purpose of fighting in the war in which his country then was engaged; that in July, 1913, a battle was fought in that war lasting all day, in which many were killed and wounded and which resulted in a retreat of the Greeks leaving their enemy in possession of the battlefield where the dead and wounded of the Greeks were left; that, at about ten o'clock in the forenoon of the day of the battle, the intestate was seen engaged in battle and uninjured; that since that day he had not been seen nor heard from; that funeral services in his memory were held by his relatives in his native town in Greece and his relatives in Greece had written to their friends in this country stating that he was dead; that he left property in this Commonwealth and that administration had been taken out on his estate, the petition therein stating that his death occurred in July, 1913. Held, that such evidence was competent upon the question, whether the intestate was killed in battle, and warranted a finding that he had died in the battle or shortly thereafter.
A judgment upon the merits of an earlier suit is not a bar in a later suit between the same parties upon a different cause except as to those issues which actually were tried and determined in the earlier suit.
In a suit in equity by one who, as the plaintiff in an action of tort against four, alleged therein to be copartners, had obtained a judgment, to have reformed a bond which had been given in that action to dissolve an attachment, two of the defendants in their pleadings contended that the court never had obtained jurisdiction of them in the action of tort. The judge found merely that the bond as executed was not in the form intended by the defendants' attorney, who drafted it, and that a case of mutual mistake was established, and by his order a decree was entered for the plaintiff. Later the defendants in the action of tort brought a petition for a writ of error to set aside the judgment in the action of tort on the ground that the court never had jurisdiction over two of the defendants. Held, that the decree in the suit in equity did not make res judicata in the writ of error the question, whether the court in the original action of tort ever had jurisdiction over the two defendants in question.
RUGG, C. J.
This is a writ of error to reverse a judgment entered in the Superior Court on April 21, 1914, in favor of the administrator of the estate of Emilio Flavio against four persons named therein as defendants. The grounds of error alleged are (1) that the Superior Court acquired no jurisdiction over the defendants Contakis and Kaleavas, and (2) that Kaleavas died August 6, 1913, and his administrator never appeared voluntarily and was not summoned in to defend the action. The case was sent to an auditor, whose general finding was in favor of the plaintiffs on the grounds alleged. The case was then heard by a single justice of this court upon the pleadings and the auditor's report. No motion was made at any time to recommit the auditor's report, and no ruling was requested or exception taken as to its form. The only evidence submitted was the auditor's report.
1. The proceedings upon a writ of error are according to the common law except as modified by usage. Perkins v. Bangs, 206 Mass. 408. Therefore only questions of law are presented on this record. Review of questions of fact is not open.
2. There was no error in the finding that the Superior Court acquired no jurisdiction over Contakis or Kaleavas. This was the finding of the auditor, who saw and heard the witnesses. The crucial point in this connection was whether a partnership previously existing between the four persons named as defendants in the original action, known as the Vassara Fruit Company, had been dissolved before the commission of the tort on which the original action was founded and whether Contakis and Kaleavas then had retired from it and had ceased to be members of the Vassara Fruit Company. That was a pure question of fact. It is not necessary to narrate the evidence. It is enough to say that it was conflicting and would have warranted a finding either way, depending upon the degree of credence given to the testimony of the several witnesses and the inferences to be drawn therefrom and from all the circumstances. It cannot be said that any error of law was made in reaching the decision that the partnership had been dissolved and that Contakis and Kaleavas had retired.
3. If the partnership had been dissolved before the wrong complained of, the attorney who appeared for the four defendants had no authority to accept service of process and appear for Contakis and Kaleavas, or at all events might have been found to have had no such authority. Such finding has been made. A court acquires no jurisdiction over a defendant where an attorney without authority accepts service of process and enters appearance for him in court. Shelton v. Tiffin, 6 How. 163. Hatfield v. King, 184 U.S. 162.
4. There is nothing in the contention that the appearance of Maurice Bushman was general and unquestioned for all the defendants. It was not general for all the defendants, but was limited by terms to another defendant named Anastos. Moreover, the validity of service depends upon the authority of Mr. Milne, the other attorney.
5. The fact that a certificate under St. 1907, c. 539, was filed in the city clerk's office of Boston on March 28, 1910, stating that Contakis and Kaleavas, together with the other two original defendants, constituted a partnership under the name of the Vassara Fruit Company, did not estop Contakis and Kaleavas from asserting that they withdrew before December, 1912, when service of the writ was accepted by Mr. Milne. Crompton v. Williams, 216 Mass. 184, 187. There is nothing to indicate that the original plaintiff ever heard of the certificate or relied upon it in any way.
6. There is strong ground for inference that such acceptance of service of process and appearance, if originally unauthorized, was subsequently ratified. But that, too, was a pure question of fact, and there was no error of law in reaching the opposite conclusion.
7. The single justice ruled that certain evidence tending to show the death of Kaleavas, to which exception was noted in the auditor's report, was admissible. That evidence was in substance to the effect that Kaleavas left this country for Greece late in 1912, for the purpose of fighting in the war in which his country was then engaged; that in July, 1913, a battle was fought between the Greeks and their enemies lasting all day, in which many were killed and wounded, and which resulted in the retreat of the Greeks with their enemy in possession of the battlefield where the dead and wounded of the Greeks were left. About ten o'clock in the forenoon of that day, Kaleavas was seen engaged in battle and uninjured. Since that day he had not been seen nor heard from. Funeral services in his memory were held by his relatives in his native town in Greece, and his relatives in Greece have written to their friends in this country stating that he was dead. He left property in this Commonwealth and administration has been taken out on his estate, the petition therefor stating that his death occurred in August, 1913. These facts were all competent evidence upon the point whether Kaleavas was killed in battle.
8. Collectively such facts were sufficient to support a finding that he died in the battle or shortly thereafter. The single justice cannot be said to have committed error of law in basing his finding to this effect upon so much of the evidence stated in the auditor's report as was competent. Blackington v. Johnson, 126 Mass. 21, 23. Emerson v. Patch, 129 Mass. 299.
9. The original plaintiff brought a suit in equity to reform the bond given to dissolve an attachment made in the original action. That suit named the same four original defendants, including Contakis and the administrator of the estate of Kaleavas. That suit related exclusively to the giving of the bond and to its form. The averments in the bill of complaint in that suit set out the entry of the action in court, but do not aver service upon or appearance by the defendant. The several answers of Contakis and the administrator of the estate of Kaleavas each fails to put in issue the service of the original writ upon him but denies that authority was given to any attorney to give a bond to dissolve attachment in that action. The denial of authority to appear relates to the averments of paragraph five of the bill, which concern the hearing before the master in chancery on the bond matter. But giving the pleadings in the equity suit a broader construction, that decision is not a bar to the present proceeding. The principle of res judicata is that as between the same parties a judgment upon the merits in an earlier suit is a bar, as to every issue that in fact was or in law might have been tried, to a later suit upon the same cause of action. But when the second action between the same parties is upon a different cause of action from the first, then the judgment in the former action is conclusive only upon those issues which actually were tried and determined. Foye v. Patch, 132 Mass. 105, 110. Newburyport Institution for Savings v. Puffer, 201 Mass. 41, 46. Diebold Safe Lock Co. v. Morse, ante, 17. The present cause of action is not the same as the suit in equity to reform the bond.
10. It is necessary and pertinent to inquire what point was actually decided in that suit. In the suit in equity the judge filed a finding of fact to the effect that the bond as executed was not in the form intended by the defendants' attorney, who drafted it, and that a case of mutual mistake was established and a decree was entered for the plaintiff. It is manifest on the record that the question whether the defendants in that suit, Contakis and Kaleavas, were subject to the jurisdiction of the court in the original action was not tried nor decided. Therefore the judgment in that suit is not res judicata of the issues raised in the present proceeding.
There is no error of law in the rulings made. Contakis v. Flavio, 221 Mass. 259.
Judgment reversed. Mandate to issue accordingly.