35 N.H. 162 | N.H. | 1857
By the last clause of the thirtieth section of the 208th chapter of the Revised Statutes, relating to trustee process, it is provided that “ no judgment shall be rendered against the trustee or against the principal defendant upon such process, unless such defendant has been duly summoned or notified of such suit.” Had the principal defendant in the case
It is wholly immaterial that there was a substantial accomplishment of the object of the order. The party, on reading the copy left, when he perceived that it was not attested must at once have understood that it was not complied with, and that therefore he was under no legal obligation to appear. To have justified the court in rendering judgment against either the trustee or the principal defendant, the record must have shown a strict and literal compliance with the order. This it did not do, and therefore the judgment was irregular, erroneous, and voidable upon proper proceedings had by the party against whom it was rendered. But, having been rendered in proceedings according to the course of the common law, by a common law court of general jurisdiction, although many matters incidental thereto were regulated by and dependent upon statutes, the want of notice did not render that judgment absolutely void ; 'a mere nullity. As against the defendant, it must be holden valid so far as notice is concerned, until reversed ; the presumption in such case being that the court has proceeded regularly, until its proceedings are reversed.
But we think the former judgment was invalid for another reason.
Where, as in proceedings under trustee process against absent debtors, the entire authority and jurisdiction of the court depend upon the existence within the State of a subject matter over which its jurisdiction may be exercised, if that subject matter be wanting, have no existence, although the court be one of general jurisdiction, its proceedings are as clearly invalid as if they had
It is equally well settled that if any court exceeds its jurisdiction and acts without authority, its judgments and orders are mere nullities, not voidable only, but simply void. State v. Richmond, 6 Foster 246; Morse v. Preshy, 5 Foster 302; Webster v. Reid, 11 Howard (U. S.) 451-2; Smith v. Knowlton, 11 N. H. 198; Downer v. Shaw, 2 Foster 280; Eaton v. Badger, 33 N.H. 228.
Now, proceedings under the trustee process against absent debtors, upon whom there is no service of process, rest entirely upon the fact assumed in their inception, that the person summoned as trustee has in his hands property, rights or credits of the absent debtor. The debtor himself being beyond the jurisdiction of the court, if he has no property or funds in the possession of the trustee, it is manifest no valid proceedings can be had against him, for the simple reason that there is nothing in the State which can furnish or be the subject of any exercise of the jurisdiction of the court. Hence in the act of July 3,1829, sec. 5, (Laws of 1830, p. 501,) it was expressly enacted that if nothing were found in the hands of the trustee, no further proceedings on such process should be had against the principal debtor, unless such debtor should have been duly served with such process, or should have actually appeared and answered in the suit. This clause, which only declared what, on familiar principles, must be the inevitable result at common law, was undoubtedly
The ease before us finds that there was in the hands of the trustee in the original suit the sum of three dollars and twenty-five cents only, less than the amount of the fees to which he was legally entitled before he could be properly charged as trustee in the action, and that the principal debtor was never served with process, and never appeared in the suit. It is impossible to conceive upon what sound reasoning it can be urged that where there is less than enough in the trustee’s hands to pay his own costs— where there is nothing whatever which can by possibility be reached by the process — there is any better cause for the rendition of a judgment against the principal defendant, than if there had been absolutely nothing in the trustee’s hands. ■ The practical result is the same. The whole object and purpose of the proceeding are alike defeated in both cases. The single end aimed at by the statute in authorizing the process is an appropriation of the property, rights and credits of absent debtors, in the possession of third persons here, to the payment of debts outstanding against them. It is in its nature a proceeding in rem, and where there is no subject matter on which it may operate the whole proceeding necessarily falls. Nor does it any the less fail, where the subject matter on which it was designed to operate is so trifling that it cannot be reached. And we are of opinion that where the fund in the hands of the trustee is so small as necessarily to be wholly absorbed by his fees, there is, within the fair intent and meaning of the law, nothing in his hands ; and the whole proceeding must terminate, unless jurisdiction of the debtor’s person has been in some way acquired. To sustain any other position would be as untenable as to contend that the nominal attachment of a chip, a stick or a hat, was a sufficient attachment of an absent
There having, then, practically and for all the purposes for which trustee pi’ocess is authorized, been nothing in the hands of the person summoned as trustee in the original suit, no property attached otherwise, and no service upon or appearance by the principal defendant, there was never anything to give the court jurisdiction in rendering the judgment declared upon in the present suit; consequently that judgment was void — a mere nullity —and constitutes no foundation for an action of debt.
According to the agreement of the parties there must be
Judgment for the defendant.