Opinion
04-28-1886
BERGHOLZ and others v. RUCKMAN and others.
S. B. Ransom, for the application. C. Parker and C. Parker, Jr., contra.
Petition of Charles Judson for leave to file bill of review. On petition, answer, and affidavits.
S. B. Ransom, for the application.
C. Parker and C. Parker, Jr., contra.
RUNYON, Ch. The bill in this cause, which was a creditors' bill, was filed April 1, 1878. The object of the suit was to apply to the payment of the debt certain land and other property which Elisha Ruckman, the judgment debtor, had, as alleged, transferred to other persons for his own benefit, and to defraud his creditors, which land and other property were then held by those persons accordingly. Under the judgment (which was recovered in the supreme court of this state) the land had been sold, and had, according to the statements of the bill, been bought in at the sheriffs sale by Ruckman himself, who paid for it, but took the sheriffs deed therefor in the name of Charles Judson. Afterwards, Ruckman being then a non-resident, an attachment to recover the balance due on the judgment was issued out of the supreme court, under which the land was attached as the property of Ruckman. His interest in the other property was also attached; but, inasmuch as Judson claims no interest therein, and was not made a defendant in this suit in respect thereto, but in reference to the land only, it is not deemed necessary to speak with any particularity in regard to that branch of the case. The bill prayed, among other things, that Judson might be decreed to convey the lands as this court might direct; and that, if necessary, the deed from the sheriff to him might be set aside as without consideration, and made to defraud Ruckman's creditors. Judson was an absent defendant,and there was no personal service of process upon him, but the steps directed by law to be taken in the case of absent defendants were taken as to him. A decree pro confesso was regularly entered against him June 25, 1878, and the cause proceeded regularly to the end. After the taking of testimony, it was set down upon the list at February term, 1880. It was heard, and a final decree was made therein May 14 in that year. The decree has been enrolled. After the lapse of about six years from the making of the decree, Judson applies for leave to file a bill of review, on the ground that the decree is erroneous upon its face, and that he has material evidence to produce in his own behalf which he did not present in the cause during its progress because he did not know of the existence of the suit until October, 1885,—more than five years after the making of the decree.
The error which it is alleged is patent upon the face of the decree is that the allegations of the bill did not warrant the prayer above particularly mentioned, (which prayer was granted,) because, as Judson insists, the interest of Ruckman in the land was, according to the statements of the bill, held in trust for him, and therefore was not attachable. This position is not tenable. The very question thus raised was decided in Williams v. Michenor, 11 N. J. Eq. 521. See, also, Robert v. Hodges, 16 N. J. Eq. 299, and Curry v. Glass, 25 N. J. Eq. 108.
As to the other ground, that the petitioner has important evidence to produce in his own behalf. The testimony which he proposes to introduce was all known to him at the commencement of this suit, and is not in any sense newly discovered. But he rests his claim to the relief which he seeks on this head upon his allegation that he had no notice of the suit. Manifestly, the claim cannot be supported upon that ground. The decree pro confesso adjudged that the petitioner had been duly brought into court, according to law, and that decree is conclusive against him. But, on looking into the proofs, it not only appears that he was notified according to law, but also that he in fact had knowledge of the existence of the suit. The notice was mailed to him May 10, 1878, in a letter addressed to him at 133 Nassau street, in the city of New York, the place at which, according to the New York directory, he had his office (he is a lawyer) in that year, as well as in subsequent years, up to and including 1883. It appears that on the fifth of April, 1878, the writ of injunction in the cause was served upon him personally at that very office, by delivering to him a copy thereof. The writ stated that he was one of the parties defendant to the suit, and enjoined him from disposing of or incumbering any of the land conveyed by the sheriff to him until he should have answered the bill, etc.
The relief which the petitioner seeks cannot be granted on any ground, nor in any way, whether by leave to file a bill of review, or by rehearing, or by opening the decree. Besides the other objections, (which are sufficient of themselves to compel a denial of the application,) there are considerations, arising out of the changed situation of parties, which also forbid. Ruckman and the complainants came to a settlement in February, 1882, in pursuance of which the former paid $12,666.35, receivingcredit for the amount which the land brought at the auditor's sale under the decree, and both the judgment in attachment, and that upon which the attachment was founded, were canceled of record. Moreover, Ruckman is dead. The complainants, therefore, could not get his testimony in the cause if the decree were opened.
The petition will be dismissed, with costs.