37 N.Y.S. 906 | N.Y. App. Div. | 1896
It is claimed by the plaintiff -in this action that no jurisdiction was acquired by the Alabama court in the attachment suit which renders the judgment in that suit binding upon this plaintiff, and deprives him of the right to recover the $551.25, which was paid by the defendant pursuant to that judgment. This claim is based mainly upon two grounds : First, that no jurisdiction was acquired of the debt attached; second, that no jurisdiction was acquired of the debtor in the attachment suit, the Litofuge Company, which was in form made a defendant in that suit.
It must be assumed that at the time the Alabama suit was commenced and the debt was attached, the debt was owned by the Litofuge Company. There is no proof that prior to such suit and attachment the debt had been assigned to the first assignee thereof, P. A. J. Blanc. The owner and the party owing the debt were, therefore, in form made parties to that suit. The judgment 'shows that service was made upon the person owing the debt, the Tennessee Company, and it appeared and answered, and thus submitted itself to the jimsdiction of that court. The record does not, however, show that any service was made upon the owner of the debt, the Litofuge Company.
The plaintiff offered evidence tending to show affirmatively that no such service was made, but this evidence was excluded as immaterial. It seems to us that we must assume that no service of any kind was made upon the Litofuge Company. If, therefore, jurisdiction was obtained in that suit at all so as to bind the Litofuge Company, it must be upon the theory that the court acquired jurisdiction of the debt so as to bind the owner thereof. Attachment suits partake of the nature of suits in r&m and are distinctly such when they proceed without jurisdiction having been acquired of the person of the debtor in the attachment suit. The debtor in the attachment suit in the Alabama case was the Litofuge Company. The distinction must be kejit in mind here that while as to the debt sought to be attached the Litofuge Company was the creditor and the Tennessee company was the debtor, yet so far as the attachment suit was concerned, the plaintiff in that suit was the creditor and the Litofuge Company was the debtor, and that the property sought to be attached was the debt owing to the attach
The insurance company set. up in bar of a recovery in that action that in the State of Massachusetts an action had been commenced by the creditors of Douglass against him and the insurance company, and that in such action Douglass’ claim had been attached and was held for. the payment of his debt, and that there had been service in Massachusetts upon the agent of the insurance company. It was not claimed that there had been personal service upon Douglass in the State of Massachusetts. There had been service upon the insurance company by serving upon its agent in the State of Massachussetts, and there had been service by publication upon Douglass pursuant to ■the laws of Massachusetts. Douglass did not appear or answer in that action.
On demurrer to the answer of the insurance company, in the action in this State, the court held that the Massachusetts action and the attachment proceeding was not a bar to the Douglass action in this State, saying, among other things, that while property might be subjected to seizure and sale for the debts ox the owner of the property by means ' of appropriate judicial proceedings, provided due process of law should precede such appropriation, and while a State might authorize the seizure and sale of property within its jurisdiction for the payment of ■ the debts of a non-resident, yet no State could subject property out of its jurisdiction to its laws; that it was a fundamental rule that in attachment proceedings the res must be within the jurisdiction of the court issuing the process in order to confer jurisdiction, and that while as to movables their seizure under attachment would show that their actual situs Was within the jurisdiction, yet in respect to intangible interests, such as debts, the general rule was, that the situs was at the domicile of the.person to whom the debt was owing. The court further said that the attachment laws of our own and of other States recognized the
In Plimpton v. Bigelow (93 N. Y. 592) the plaintiffs were residents of Massachusetts and the defendant was a resident of Pennsylvania. The action was brought in the State of New York upon promissory notes and an attachment was issued. The sheriff undertook to levy the attachment upon 439 shares of stock in a Pennsylvania corporation, belonging to the defendant. The court vacated the levy, holding that shares of stock in a foreign corporation belonging to- a non-resident defendant could not be attached in this State, that the res was not within this State, and although it appeared that the corporation had offices and did business in this' State, yet the court said: “We regard the principle to be too firmly settled by repeated adjudications of 'the Federal and State courts to admit of further controversy, that a corporation has its domicile and residence alone within the bounds of the sovereignty which created it, and that it is incapable of passing personally beyond that jurisdiction.”
We do not see that it is necessary to go beyond the. authority of these two cases to determine the rights of the parties, in this action. No jurisdiction was acquired of the person of the Litofuge Company, the owner of the indebtedness sought to be attached. The only claim that can be made is that jurisdiction was acquired of the indebtedness itself so as to enable the plaintiff in that suit to
tinder the authorities cited above,, an attachment could only be levied upon this indebtedness if it was within the jurisdiction of the Alabama court, if its situs was in Alabama, The situs, of the indebtedness could only be at the domicile of the Litofuge. Company, in the-State of New York, or at that of' this' defendant in Tennessee.
The domicile of the defendant was not in Alabama. ■■ Although it had offices and did business there, its domicile could only be in Tennessee, the sovereignty which created the corporation. Other questions are raised by the plaintiff as to the validity of the Alabama judgment and the effect to be given tó it in this State, but if we'are right in the suggestions.already made, it is unnecessary to go further to determine .that the verdiót ordered by the trial court in this case Was erroneous.
The exceptions of'the plaintiff should, therefore, be sustained, .and the motion for a new trial should ■ be granted, with costs tó the appellant to abide event.' '
Yak Brunt. P. J., Patterson, O’Brien and Ingraham, JJ., concurred.
Exceptions sustained and new trial granted, with costs to' plaintiff to abide event.