Phillips v. Negley

The facts material to the determination of the questions arising in this cause are as follows:

Philip Phillips sued the defendant, Negley, in the supreme court of the District of Columbia, on August 29, 1874, to recover $4,368, alleged to be due upon a certain order in writing, signed by Simon Witkowski and by the defendant, as attorney for Mrs. Witkowski, addressed to Charles F. Peck and Charles E. Hovey, and by them accepted, payable out of money received by them from the United States, arising from a judgment in the court of claims in favor of Witkowski. A copy of the order was attached to the declaration. Process was served personally on the defendant on the same day. On October 26, 1874, Negley filed an affidavit of defense denying his liability on the ground that the order was signed by him only as the agent and on behalf of Mrs. Witkowski; alleging that the plaintiff was not in fact holder of the same for value; and denying notice of non-payment, and any indebtedness whatever. On May 3, 1877, the plaintiff joined issue on these pleas; and on April 3, 1879, the defendant not appearing, a jury was called, who found a verdict for the plaintiff for the sum demanded with interest, and judgment was rendered thereon. On September 4, 1882, the defendant filed his motion 'to vacate the judgment and set aside the verdict entered herein ex parte on the third day of April, 1879, because of irregularity, surprise, fraud, and deceit in the procurement of said verdict and judgment, and the negligence of defendant's attorney, the particulars of which appear in the affidavit of the defendant filed herewith and in the record and papers on file in this case.' In support of this motion the affidavits of the defendant Negley and of Richard Harrington were filed. In that of the defendant he denies his personal liability on the order, and says that when served with process in the cause he was temporarily in Washington, being at the time and always since a resident of Pittsburgh; that he employed Harrington as his attorney, and filed his affidavit of defense, and received no further notice or information in reference to the suit from the fall of 1874 until about July 26, 1882, when he was served with process in a suit brought on the judgment in Allegheny county, Pennsylvania; that after he filed his affidavit of defense in the original suit, that is, from October 26, 1874, the plaintiff 'seemed to have abandoned the case, and thereby to mislead affiant's attorney;' that the plaintiff took no notice of the plea until May 3, 1877, when he joined issue, but gave no notice of trial; that in the mean time, without defendant's knowledge, Harrington had removed from the city of Washington, as was well known to the plaintiff and his counsel, leaving the defendant without an attorney; that on April 3, 1879, without any notice to the defendant, the case was called for trial, and in his absence the plaintiff, with knowledge that the defendant was ignorant of the proceedings, called for a jury, and without other proof than the production of the order sued on procured the verdict and obtained the judgment thereon, and that by reason of the premises the said proceedings and judgment are a fraud upon him. Harrington states in his affidavit that he understood that the plaintiff had abandoned his suit, and that he believes he so informed his client, the defendant, and that he, Harrington, removed from the District of Columbia in March, 1875, and has not since resided or practiced law therein, and that on such removal he undertook to notify all his clients, but having considered this cause at an end by reason of the plaintiff's failure to join issue or take action on the plea therein, as required by the rules of the court, he did not notify the defendant, and that the plaintiff and his attorney well knew when said cause was set down for trial that the affiant had removed to Dover, Delaware. Notice of this motion was served upon the plaintiff in the judgment, who appeared and filed counter-affidavits of himself and of his attorney, William F. Mattingly. The latter states that he mailed notices of the trial of the issues in the action for the May term, 1877, in due time, to what he understood to be the post-office address both of Harrington and of the defendant, and that the cause stood for trial from thence until the January term, 1879. The plaintiff, in his affidavit, denies all charges of fraud, and says that on the trial of the action the verdict was taken upon testimony showing that, after the delivery to the plaintiff of the order sued on, the defendant obtained possession of the fund out of which the same was to have been paid, and failed to make the proper application of the same. On December 2, 1882, the supreme court of the district, holding a special term and circuit court, entered the following order: 'Philip Phillips, Pl'ff, vs. James S. Negley, Def't. (At Law. No. 12,890.)

'This cause coming on to be heard upon the defendant's motion to vacate the judgment and set aside the verdict entered herein ex parte on the third day of April, 1879, because of irregularity, surprise, fraud, and deceit, and the same having been argued by counsel on both sides and duly considered, it is considered by the court that said verdict and judgment be and the same is hereby vacated, set aside, and for nothing held, and a new trial granted.'

From this order an appeal was taken to the court in general term, December 9, 1882, and on February 15, 1883, the defendant moved the court to dismiss the appeal, on the ground that an appeal would not lie from such an order made at the circuit court or special term. The proceedings in general term resulted in the following order, entered February 19, 1883: 'Now come here as well the plaintiff as the defendant, by their respective attorneys, whereupon, because it appears to the court here that there is no error in the record and proceedings of the special term, therefore the court remands the case to the special term, there to be proceeded with as if no appeal had been taken from its order of December 2, 1882, which appeal is hereby dismissed, with costs, to be taxed by the clerks. The plaintiff gives notice that he will prosecute a writ of error, and the penalty of his supersedeas bond is fixed at $500.'

To reverse these proceedings and orders this writ of error has been prosecuted.

John Selden and W. Hallett Phillips, for plaintiffs in error.

J. S. Edwards and Job Barnard, for defendant in error.

[Argument of Counsel from pages 669-671 intentionally omitted]

MATTHEWS, J.