Jones v. Manganese Iron Ore Co.

BIRD, V. C.

On petition for injunction.

John F. Dumont, for petitioner.

Frank J. Swayze, for Mr. Woodward.

BIRD, V. C. The Manganese Iron Ore Company owned certain mining leases, securing to it the right to take ores. October 17, 1881, it sublet all its rights to W. A. Leavitt, for one year. L. took possession, and continued in possession until in——, 1883, when he sold and transferred all his interest in the mines, ores, etc., to the Delaware Rollingmill Company, of which the said J. L. Jones was afterwards made receiver. The Manganese Iron Ore Company had given a mortgage on the said premises, which was in 1882 assigned to said Leavitt, who assigned it to the Delaware Rollingmill; and it passed to said the receiver, who filed a bill in this court to foreclose said mortgage. After the said suit had progressed to a decree pro confesso, it was discovered that W. W. Woodward had recovered a judgment against the said Manganese Iron Ore Company, before a justice of the peace, for $193.18, and $3.21 costs, about the thirteenth clay of November, 1884, and November 18, 1884, said justice issued an alias execution, by virtue of which a levy was taken on sundry articles, several of which are claimed to be fixtures, and are included in the said mortgage, all of which were advertised for sale under said execution. The prayer of the petition is that an injunction do issue restraining said sale.

It is said that the judgment is illegal and void, because the defendant therein had no notice of the pendency of the action, never having been summoned. The summons which was issued was served on a man in the employ of Leavitt, and not in the employ of the company. He hud not been in its employ, nor had he ever been known to the company. There is no proof showing the slightest relation between the company and the man upon whom the summons was served, except that he was employed by Leavitt, who was a director of the company and its vice-president. It does not appear that, at any time, any knowledge of those proceedings before the justice was brought home to the company until long after judgment was obtained. As the law stands in this stale, I must declare that this judgment is illegal and void because the justice never acquired jurisdiction of the defendant. The justice's court is one of special and limited powers, and the oral testimony offered to show that the person named in the return of the constable, as indorsed on the summons, was in no way connected with the company, was most clearly competent. See Crepps v. Burden, 1 Smith, Lead. Cas. 1079, where the question is fully discussed. And that such a judgment is void, see Hess v. Cole, 23 N. J. Law, 116; and that it may be shown to be so collaterally, Id. 124; also Elliott v. Peirsol, 1 Pet. 328; Hickey v. Stewart, 3 How. 750; Doughty v. Doughty, 27 N.J. Eq. 315; Moore v. Gamble, 9 J. Eq. 247.

Then, again, it is alleged that the defendant company is a foreign corporation, and that the complainant, as receiver, issued an attachment, and seized thereby all the effects of a personal nature of said company not included in the mortgage, or, if included, would not pass by it, it not having been filed according to law, and by virtue thereof claims such effects as against said judgment of Woodward. Objection is made to this,because, as an attaching creditor, the plaintiff therein has not yet obtained judgment. It is said that he has no standing in court until he has obtained such judgment. It has been held that an attaching creditor can file a bill to set aside conveyances as fraudulent upon the service of the attachment. Curry v. Glass, 25 N. J. Eq. 108. It seems to me that this is so nearly akin to such cases that it is my duty to follow the rule so laid down. If I am right in this, then the levy not only falls as to the items claimed to be fixtures, (and whether they are or not,) but also as to all those which are not.

But it is claimed that the receiver is estopped from urging any defense to this levy, because Leavitt promised to pay it, or at least negotiated with Woodward for the payment of it in iron, and because of his conduct Woodward was put off his guard and lost rights. It is to be noticed that it was not a judgment against Leavitt, and consequently not his debt, and therefore his promise to pay it did not bind him, because there was no absolute promise in writing, and none at all which Woodward accepted. But to my mind the complete answer to this allegation of estoppel is the fact that Mr. Woodward did not act upon it at all. There is no proof to show that he did or did not do anything because of anything Leavitt did or said. He refused to accept the offer made by Leavitt, and nothing more or less. It is said, if Leavitt had made known the fact that the judgment was void, that then Woodward might have pursued his remedy earlier, and perfected some lien on the property of the company. But it does not appear that L. knew that the judgment was void, or that there was any imperfection in it. He was not bound to know, for he was not a party. But W. did know. He was the plaintiff, and was chargeable with knowledge. He had no right to take such a judgment, nor to rely upon it. And it seems to me that it would be highly inequitable, in such case, to say that the offer to pay by L. made such void judgment good as to the property or interests of L. or the company.

Lastly, I am urged to regard the judgment as good because it is founded upon a meritorious consideration. I have no doubt but that Mr. Woodward parted with all the goods which he says he sent. I have no doubt but that he supposed he was sending them to the company, and that it received them as it had done before. But it did not receive them; nor did it order them. At the time the goods were furnished, L. was in possession of the mines, and the defendant company had nothing whatever to do there, and was not there by any one as agent or otherwise. This is certainly unfortunate for Mr. W., but the court has no power to relieve him of his mishap, and to declare a judgment valid and binding against a party who not only was not summoned, but who received nothing of the supposed consideration.

The only equity that I can conceive of arises from the assertion that the Delaware Rollingmill Company assumed all of the liabilities of Leavitt, and that the receiver must pay them, which, if true, may extend to Woodward, since it seems that he (Leavitt) or his employes received all of the goods sold by W., upon which I pronounce no conclusion.

I will advise that the judgment is void both as to the articles claimed to be fixtures, and as to all those which are certainly goods and chattels, and that the injunction be made perpetual. The complainant is entitled to costs on his petition.