Opinion
02-24-1890
AMEY et al. v. CALKINS et al.
S. B. Ransom, for complainants. John W. Taylor, for defendant Calkins. R. Wayne Parker, for defendant Dawson. Chas. M. Woodruff, for defendant Roosevelt.
On bill to restrain proceedings to enforce a judgment.
S. B. Ransom, for complainants. John W. Taylor, for defendant Calkins. R. Wayne Parker, for defendant Dawson. Chas. M. Woodruff, for defendant Roosevelt.
BIRD, V. C. For the purposes of the present contention, a very brief statement will suffice. Roosevelt became the owner of the instrument called a "lease" in the bill of complaint. This lease had been assigned to one Appleget, and Appleget assigned four-fifths of his interest to one of the complainants, who formed a partnership involving the interest in the lease with the other complainant. The interest covered by this lease was the standing timber on three certain tracts of land, containing about 1,500 acres. In the month of October, 1882, the complainants commenced cutting timber, and continued to cut and remove until the next May, when they were notified that as to two of the said tracts they were trespassers. Suits were instituted against them by persons claiming the title. As to the other 700 acres, there seemed to be no dispute respecting their right to cut and remove timber under the lease. In an arrangement and settlement of the conflicting interests asserted by different parties other than the complainants, Roosevelt's interest in the said lease was assigned to Dawson, and by him assigned to the defendant Calkins. The lease shows that certain rents or royalties were reserved to be paid to Roosevelt, which should amount at least to the sum of $500 a year. Calkins claimed these rents or royalties for the whole period of time which the lease had been running, from 1882 until 1885. Amey had found market for their wood and timber at the hands of the Delaware, Lackawanna & Western Railroad Company, whose office and place of business is in New York city, and who owed at least the sum of $1,800 to the Ameys. In order to recover the royalties which Calkins claimed to be due, he instituted suit by attachment in New York, levying upon these funds in the hands of the company. The Ameys were served with process. They answered, and set up a great variety of defenses. The cause was brought to hearing before a court and jury, and a verdict rendered in favor of Calkins for the sum of $400.
This bill was filed, and an injunction asked for, to restrain Calkins from enforcing this judgment under an action brought thereon in this state. The injunction was allowed. The allegations of the bill were such as to warrant this extraordinary writ. The fraud which was charged was of such a character that it seemed proper to prevent the execution of the judgment until a fuller inquiry had been had than was made upon the hearing in the suit in New York. But the answer of Calkins to this bill not only denies the fraud, but alleged that every question pertaining thereto was fully set up by the answer of the Ameys in the New York suit, and witnesses were examined thereupon in the interests of the Ameys. And upon the opening of this case before me the proceedings and testimony in that case were presented; and the question thereupon is properly raised, are all the allegations respecting the fraudulent character of the transactions named in the bill res judicata? I have examined both the allegation of the bill, and pleadings and proofs presented in the New York cause, and am led to the conclusion that every branch of the case made by the bill was made by the pleadings in the New York cause, and that offers to establish the defenses there, by way of testimony, were complete. It is true, much of the testimony offered was not received, being overruled by the court; but the remedy for the correction of such errors, if any were made by the court, is not in the tribunals of a sister state, but by appeal according to the laws of the state in which the action was instituted. I have not the shadow of a doubt but that, accordingto well-settled principles of law and equity, the case made by this bill as against Calkins and Roosevelt has been fully heard and determined. This being so, as to them the bill should be dismissed.
I do not forget that counsel for complainant insists that there is a special equity in the case which should be so far applied to Roosevelt as to retain this bill against him. Dawson had filed a bill in this court against the Ameys, restraining them from proceeding under the lease. The allegations in the bill which I am now considering, and upon which counsel rely, are in these words: "And your orators further show that, upon being served with the said injunction, and with a subpoena to answer in said cause, they at once ceased work on the said tract of land, and immediately saw the said James A. Roosevelt, and informed him of the service of the said injunction upon your orators; that the said James A. Roosevelt then told your orators that they should quit work on the said tract of land until this matter should be settled, and that they should not be called upon to pay any royalty or percentage under the said lease for any wood they had cut, and that your orators need not pay any attention to the said suit,—that he would defend it, and save your orators harmless therefrom; that, upon receiving this assurance from the said Roosevelt, your orators did not enter any appearance in said suit, and did not answer the said bill of the said Thomas W. Dawson, supposing that the said Roosevelt would do that for them, as he had agreed to do." The bill further alleges that, while Roosevelt filed an answer in order to protect the interest which he claimed in his own behalf, as to the title to the land in dispute, he filed no answer, nor did he take any steps to protect the interests of the Ameys, the complainants in the present suit, but allowed a decree pro confesso to be taken against them. It is not only insisted that this branch of the case was not fully presented and heard in the New York suit, but it is urged that the injunction should be retained, and the bill held, as to Roosevelt, until a hearing can be had in this court, in order to enable the Ameys to have any benefit which they may be entitled to, and which may be adjudged to them in this cause, against the New York judgment, by way of recoupment. This is upon the theory that, although the New York judgment was in favor of Calkins, he holds under Roosevelt, and consequently is subject to all the equities which might have been raised against Roosevelt. The question is, then, was this special feature of the case heard and determined in New York? In the suit in New York, the Amey who claims that Roosevelt released him from all obligations to pay rent was examined as a witness. On being asked what the conversation was on that point between him and Roosevelt, he answered: "He said I was to be excused from paying any rent until all the difficulties were adjusted." Appleget was present at the time of the interview, and he was examined as a witness in the New York suit in behalf of the Ameys, in which he said: "I think Mr. Roosevelt said that he would not exact the obligations of royalty under the present circumstances, — under the existing circumstances." Then this question was put: "Was there anything else said by Mr. Roosevelt about defending the suit, in your presence?" to which he answered: "He asked him to refer him to a good lawyer in that county, to take care of his rights. Question. Who did? Answer. Mr. Roosevelt." From this testimony, it cannot be gathered that Roosevelt' made any promise to Amey to defend the said suit, or in any way to protect his interests in the said premises. Both Amey and Appleget were asked to state what passed, but neither of them make any reference to any promise upon the part of Roosevelt that he would enter an appearance and make defense in behalf of Amey. If such promise had been made, it does not seem at all probable that, since it was so very important,—involving such large interests,—both Amey and Appleget would have forgotten it. They certainly would have been more likely to have remembered it at that time than at a later period. But, according to Roosevelt's testimony, the conversation upon this subject was limited to the question of royalty pending the litigation only; and, as already intimated, the claim of Calkins in the New York suit was for royalty for three years, and the defense put in by Amey covered the entire period, so that the whole ground of controversy on this subject was presented, inquired into, and determined. The court instructed the jury that there seemed to be no defense to the claim for royalties for the first year, and the jury found a verdict accordingly,—that is, the claimant was entitled to $400.
During the discussion of the principal questions,—that is, whether the whole subject of controversy, as between Calkins and Roosevelt on one side and Ameys on the other, should be reviewed or not, and, that justice might be done, the injunction retained,—I was inclined to think that probably there was sufficient equity in the case, under the allegations of the bill above stated, to justify the application of the doctrine of recoupment. But, upon carefully examining the case, I am fully convinced that this would be wholly unwarranted; for I can find nothing that is open to controversy between Amey and Roosevelt which was not fully heard in the New York suit, or which might not have been heard. It is needless to cite authorities in support of these general principles; yet I will add some of the later adjudications upon the subject, which seem fully to sustain all the earlier one: Phillips v. Pullen, 45 N. J. Eq. 5, 14 Atl. Rep. 222, (see 1 Stew. Dig. 573, and Supp. thereto, 324;) Jones v. Davenport, 45 N. J. Eq. 77, 13 Atl. Rep. 652; Gayer v. Parker, 39 N. W. Rep. 845, 8 Amer. St. Rep. 227, (to which is appended a valuable note giving an analysis ofthe principles controlling courts in such cases;) Myers v. Coal Co., (Pa.) 17 Atl. Rep. 891; Legrand v. Rixey, 83 Va. 862, 3 S. E. Rep. 864; Wynn v. Heninger, 82 Va. 172; Shumate v. Fauquier Co., 84 Va. 574, 5 S. E. Rep. 570; Hall v. Zeller, 17 Or. 381, 21 Pac. Rep. 192; Honaker v. Cecil, 84 Ky. 202, 1 S. W. Rep. 392; Water Co. v. Middaugh,(Colo.) 21 Pac. Rep. 565; Seabright v. Seabright, (W. Va.) 10 S. E. Rep. 265; Faust v. Faust, (S. C.) Id. 262; Horton v. Critchfield, 18 Ill. 133, 65 Amer. Dec. 701, and note at the end of the case referring to Andrews v. Montgomery, 19 Johns. 162, 10 Amer. Dec. 213; Fischli v. Fischli, 1 Blackf. 360; Scott v. Coleman, 5 Litt. 349; Wern wag v. Pawling, 5 Gill & J. 500; Pelton v. Platner, 13 Ohio, 209; Welch v. Sykes, 3 Gilman, 197; Davis v. Smith, 5 Ga. 274; Baxley v. Linah, 16 Pa. St. 241. See Bimeler v. Dawson, 4 Scam. 536, 39 Amer. Dec. 435, note; Hollister v. Abbott, 31 N. H. 442, 64 Amer. Dec. 342, (see notes appended thereto;) Messier v. Amery, 1 Yeates, 533, 1 Amer. Dec. 316, and note; Tadlock v. Eceles, 20 Tex. 782, 73 Amer. Dec. 213, and references; Slocomb v. De Lizardi, 21 La. Ann. 355, 99 Amer. Dec. 740, and notes; McReady v. Rogers, 1 Neb. 124, 93 Amer. Dec. 333, and notes; Benz v. Hines, 3 Kan. 390, 89 Amer. Dec. 594, and notes.