George O. Ellis, as Ancillary Administrator with the Will Annexed, etc., of Byron G. Smith, Deceased, Respondent, v. Clara Delafield, Defendant, Impleaded with Thomas B. McGovern and Frederick F. Carey, Appellants

George O. Ellis, as Ancillary Administrator with the Will Annexed, etc., of Byron G. Smith, Deceased, Respondent, v. Clara Delafield, Defendant, Impleaded with Thomas B. McGovern and Frederick F. Carey, Appellants. First Department, November 8, 1912. Trial—mutual motions for judgment injury case —facts necessary to judgment regarded as found — action upon foreign judgment — order vacating foreign judgment rendered upon another foreign judgment subsequently reversed—jurisdiction of foreign courtattorney and client — authority of attorney to defend motion to vacate judgment — defenses to counterclaim based on foreign judgment which has been reversed. Where in a jury case both sides move for judgment at the close of the evidence the facts are submitted to the court, and every fact necessary to support the judgment will be regarded as found. Action upon a foreign judgment. It appeared that in a former action, wherein the plaintiff’s testator was defendant and the present defendants were plaintiffs, judgment was entered in a Circuit Court in Wisconsin in favor of the plaintiff. Thereafter on an appeal to the Supreme Court of that State the judgment was reversed with a decision that the plaintiff’s testator was entitled to a money judgment upon a counterclaim, which judgment was entered in the Circuit Court. Between the rendition of the first judgment and its reversal the plaintiffs in that suit, the present defendants; brought suit, on the judgment in the State of California, wherein judgment in their favor was entered by default. After the reversal of the Wisconsin judgment, a motion was made in the court of California by the defendant in that action to vacate the California judgment. Notice thereof was served upon the attorney for the plaintiffs in said action, who failed to oppose the motion upon the ground that his authority to represent his clients had terminated. Thereupon an order was entered vacating and setting aside the judgment. This suit is brought by the plaintiff, representing the defendant in the former action, on the Wisconsin judgment, the defendants pleading the California judgment as a counterclaim. The plaintiff in reply alleged that the Wisconsin judgment upon which the California judgment was based was reversed by the courts of Wisconsin after the entry of the latter judgment. Held, that as the defendant failed to meet the burden of impeaching the order of the court of California vacating the judgment, and as the court made no express finding impeaching it, the Appellate Division should confirm a judgment for the plaintiff upon the ground that the said order was not void for want of jurisdiction. Held, further, that the plaintiff suing upon the judgment on the counterclaim entered in Wisconsin was entitled to show the reversal of the judgment for the plaintiff in that action as a defense to the California j udgment based upon it, in the same manner as payment or as a discharge in bankruptcy might be availed of as a defense. An attorney at law whose authority has not been revoked has power to receive payment of a judgment obtained for his client and to acknowledge satisfaction thereof, and has also authority to defend a motion to vacate the judgment. Where a judgment has been entered in an action upon a foreign judgment and the latter judgment is subsequently reversed, the defendant in the action upon the judgment should be relieved from the judgment obtained thereon. Appeal by the defendants, Thomas B. McGovern and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of March, 1911, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived. William B. Ellison, for the appellants. Gilbert E. Roe, for the respondent. [MAJORITY — Miller, J.:] Miller, J.: On the 3d day of April, 1897, in an action wherein the plaintiff’s testator was defendant, and these defendants were plaintiffs, a judgment was rendered in the Circuit Court of Bock .county, Wis., in favor of the plaintiff therein for the sum of $3,294.83. Thereafter an appeal was taken to the Supreme Court of that State, which reversed the judgment and decided .that the defendant therein, the said testator, was entitled to a judgment .in the sum of $1,507.25, upon a counterclaim interposed by him, and accordingly judgment was entered for said sum in his favor in the Circuit Court of Rock county, Wis., on the 24th day of April, 1899. Intermediate the rendition of the first judgment and its reversal the plaintiffs in that suit, the defendants herein, brought suit on said judgment in the State of California, and a judgment therein was entered by default on the 12th day of January, 1899. After the reversal of the Wisconsin judgment a motion was made in the Superior Court of San Francisco on behalf of the defendant in said action, the plaintiff’s testator, to vacate the California judgment. Notice thereof was served upon Mr. Pomeroy, the' attorney for the plaintiffs in said action, these defendants, who claimed that his authority to represent his clients had terminated, and, therefore, did not appear to oppose the motion, which was submitted to the court without opposition, and on the 26th day of December, 1899, an order was entered vacating and setting aside said judgment. This suit is brought by the plaintiff on the Wisconsin judgment, entered in favor of his testator, as aforesaid. The defendants pleaded the California judgment in their favor as a counterclaim, and in reply the plaintiff set up the order of December 26, 1899, and that the Wisconsin judgment upon which the California judgment was based was reversed by the Supreme Court of the State of Wisconsin after the entry of the latter judgment. At the close of the evidence both sides moved for a direction of a verdict, and the motion of the plaintiff was granted. The learned trial court put its decision upon the ground that, irrespective of whether the California court had jurisdiction to make the order of December 26,. 1899, the validity of the order could not be questioned in this action. We have reached the same result, but upon different grounds. Where, in a jury case, motions are made for judgment by both sides at the close of the evidence, the facts are submitted to the court, and of course the general rule must be that in such case every fact necessary to support the judgment is to be regarded as found. In this case the court made' express findings, but did not expressly find what the' California law was on the subject of the validity of the said order of December 26, 1899, except inferentially in refusing to find as requested by the defendant. Of course the burden was upon the defendant to impeach the said order, and in the absence of an express finding to the contrary, we think we are at liberty to affirm this judgment on the ground that the said order was not void for want of jurisdiction of the court to make it, or at least that the defendant has failed to establish such invalidity. The appellants attack the jurisdiction of the California court to make the order in question upon two grounds: First, that, after the lapse of six months, the court had no jurisdiction to vacate its judgment on motion, but. that relief could only be obtained by an action in equity; and, second, that service of the notice of motion on the attorney more than six months after the entry of judgment was a nullity and insufficient to confer jurisdiction. The testimony of the expert witnesses, two for the defendants and one for the plaintiff, is diametrically opposed as to the law of California on both of those questions. No California case is cited by either on the precise question of the remedy of a party against whom judgment has been rendered on a judgment of another State, which has subsequently been reversed by the courts of that State. Sections 473 and 939 of the Code of Civil Procedure of the State of California are cited and particularly relied upon by the experts for the defendants. Section 473 provides for relief from a judgment, order or other proceeding taken against a party “ through his mistake, inadvertence, surprise or excusable neglect.” Section 939 provides that an appeal may be taken from a final judgment in an action or special proceeding within six months after the entry of the judgment. Neither applies to this case. Section 283 is also cited on the authority of an attorney to represent his client after judgment. That section provides: “§ 283. Authority. An attorney and counselor shall have authority: “ 1. To bind his client in any of the steps of an action or proceeding by his agreement filed with the clerk, or entered upon the minutes of the Court, and not otherwise; “ 2. To receive money claimed by his client in an action or proceeding during the pendency thereof, or after judgment, unless a revocation of his authority is filed, and upon the payment thereof, and not otherwise, to discharge the claim or acknowledge satisfaction of the judgment.” That does not cover this case except inferentially, for, in the absence of anything to the contrary, it would seem plain that an attorney who had authority in the absence of the filing of a revocation to receive payment of a judgment and to acknowledge satisfaction thereof would at least have ■ authority to defend the judgment against a motion to vacate it. The case of Knowlton v. MacKenzie (110 Cal. 183) is cited. That case is not directly in point, but a dictum in the opinion is pertinent. It is to this effect: “ For the purpose or prosecuting or defending an action the authority of an attorney ordinarily terminates with the entry of judgment * * * except for the purpose of sustaining and enforcing the judgment, or seeking to have it set aside or reversed.” The plaintiffs in the California action, the defendants in this, were non-residents of the State of California, and it was impossible to get personal service upon them within the State. The logical conclusion of the defendants’ argument is that, after the lapse of six months from the entry of the judgment the defendant therein, plaintiff’s testator, could not obtain relief in the courts of California, although the judgment upon which it was based should be reversed after the expiration of that period, and indeed their principal expert distinctly so testified. Of course, the plaintiff’s testator, upon a reversal of the Wisconsin judgment, was entitled to be relieved of the California judgment. It was for the courts of California to decide upon the appropriate remedy for affirmative relief, whether by the ancient, cumbersome and expensive remedy of action or by the more modern, simple, direct and inexpensive remedy of a motion in the action. The attorney who procured the order testified that he submitted authorities in support of the motion; that it was taken under advisement by the court, and that subsequently the order was made. That is the only decision of the courts of California referred to in this record, which is precisely in point, and we think' that the force of it has not been overcome. (See Laing v. Rigney, 160 U. S. 531.) Moreover, we think that, irrespective of the validity of the order of December 26, 1899, the plaintiff was entitled to show the reversal of the Wisconsin judgment as a defense to the California judgment based upon it, precisely as payment or a discharge in bankruptcy might be availed of as a defense. The distinction must be kept in mind between matter arising after judgment which should preclude the enforcement of it, and matter which could have been pleaded as a defense to the action in which it was rendered. If the plaintiff’s testator had paid the California judgment upon its rendition, he would plainly have been entitled to restitution upon a reversal of the judgment upon which it was based, either by motion in the action or by a separate action ‘to recover the sum paid. (See Haebler v. Myers, 132 N. Y. 363.) Such an action could be brought in any State in which jurisdiction of the parties could be obtained. A fortiori, when assailed by the j udgment in any jurisdiction where justice is administered, he should be permitted in defense to avail of matter arising subsequently to the judgment and' which could not, therefore, have been pleaded in the action, in case such new matter does in fact constitute a defense to the claim upon which the judgment was founded. (See McDonald v. Davis, 105 N. Y. 508; Clark v. Rowling, 3 id. 216.) We can perceive no distinction in principle between the case of a discharge in bankruptcy occurring after judgment and the subsequent reversal of the judgment upon which the action was brought. The principle is that there is no such merger as to prevent the court from looking behind the judgment to see upon what it is based. The judgment should be affirmed, with costs. Ingraham, P. J., Laughlin, Scott and Dowling, JJ., concurred. Judgment affirmed, with costs.