Coleman's Appeal
1874 Pa. LEXIS 103
Pa.
1874
Check Treatment

The opinion of the court was delivered, May 11th 1874, by

Sharswood, J.

Thе first and most important question to be determined upon this appeal is, whether the Court of Common Pleas of Lycoming county, under the bill filed, acquired jurisdiction by the service of process on the defendant Dwight, in the *455state of New York. That depends upon the construction which ought to be given to the Act of Assembly, approved April 6th 1859, Pamph. L. 387, entitled, “An Act to authorize execution of process in certain cases in equity, concerning property within the jurisdiction of the court, and on defendants not resident or found therein.”

As the first canon of construction requires us to consider the old law, the mischief and the remedy, it will throw light upon this subject to state briefly the remedies available to a party in this state at the time of the passage of the act in question, against persons “not resident or found therein.”

By the Act of 1705, 1 Smith 45 — re-enacted and amended by the revised Act of June 13th 1836, Pamph. L. 580 — if a nonresident has property, real or personal, within the jurisdiction, an action may be commenced against him by a writ of foreign attachment, commanding the sheriff to attach the defendant, by all and singular his goods and chattels, lands and tenements, in whose hands or possession soever the same may be, so that he be and appear, &c. And in every such writ there must be contained a clause, commanding him to summon all persons, in ‍‌​​​‌‌​​‌‌‌‌‌‌​​​​​​‌‌‌​‌‌‌​​‌​​​​​‌​‌‌​​‌​​‌‌‌‌‍whose hands or possession the said goods or chattels, or any of them may be, so that they appear, &c. The property itself, if susceptible of mаnual seizure, is taken possession of by the sheriff, and if not, the summons of the garnishee fixes upon him a liability to the plaintiff, for whatever he may hold belonging or owing to the defendant at that time. Time is allowed to the third term, before judgment can be entered against the defendant for want of appearance, and afterwards a scire facias must be issued against thе garnishee, in which he is allowed to controvert under the plea of nulla bona the fact of his indebtedness to the original defendant, or that the property attached was his. The non-resident defendant may have the attachment dissolved by entering security for the plaintiff’s claim, or without such dissolution, he may appear voluntarily and take defence against the demand. By such appearance, the proceeding against him may end in a judgment, which will bind him personally, and which may be executed upon any property belonging to him within the reach of the process of the court; and which may follow and be enforced against him extra-territorially. But without such voluntary submission to the jurisdiction of the court, the judgment in the proceeding by foreign attachment can be enforced only against the property attached, or against the garnishee in personam to the extent of the property admitted, or found by the verdict of a jury to be in his hands. It is allowed to have no extra-territorial operation. Foreign attachment, however, will not lie upon a demand founded in tort, as was determined in Pоrter v. Hildebrand, 2 Harris 129, and the remarks of Justice Bell in that case deserve to be here noted. “ As a peculiar remedy for en*456forcing payment of debts and other pecuniary obligations, assumed by our neighbors, or aliens, it has been found useful, though certainly not unattended with inconvenience; but I have heard no sufficient reason suggested for hazarding the doubtful expеriment of conceding the extended efficacy, now, for the first time claimed for it. If such reasons exist they should be more properly addressed to the legislature, where alone resides the power of extending the sphere of its action by specifically declaring the additional causes of complaint to which it should be applicable.” It was furthеr held in that case, that the process could not be used in an action to recover from common carriers damages for the loss of a trunk, where the declaration was in tort and not in contract.

Where the claim of the plaintiff is for goods or land in the constructive possession of a non-resident, by his agents or tenants, he has his remedy by a writ of ejeсtment for the land, making the tenants or occupants defendants, and by a writ of replevin for goods, in like manner summoning the person in possession as defendant ; or an action ‍‌​​​‌‌​​‌‌‌‌‌‌​​​​​​‌‌‌​‌‌‌​​‌​​​​​‌​‌‌​​‌​​‌‌‌‌‍of trover and conversion may be maintained against such person, to recover the value of the goods in damages, where he has refused on demand to give them up, claims the titlе to be in himself, or there is other evidence of conversion. Where the demand of the plaintiff is founded upon a record, as a judgment or recognisance, or upon a quasi record, as a mortgage or mechanic’s claim, for which process of scire facias has been provided, the rule of law is that two returns of nihil habet by the sheriff are equivalеnt to a service, and judgment may be entered against the defendant for want of appearance, but the execution on the judgment is generally limited to the property bound by the original record. In the case of an ordinary demand for debt or damage, there is no mode of reaching by any process issuing from a court of common law, the person of a non-resident defendant not found within the jurisdiction. The process of outlawry in England, originally confined in civil proceedings to actions of trespass vi et armis, but afterwards extended by statute to all cases in which a capias could issue, was aimed only at absconding defendants to compel an appearance; for the absence of the defendant beyond the sea at the time the exigent is promulgated, is, at common law, ground to reverse the outlawry, though if the defendant went abroad purposely for delay, that fact may be effectually replied: 3 Blackst. Com. 284, note; Havelock v. Geddess, 12 East 631. In Pennsylvania there never has been any process of outlawry in civil cases: Dillman v. Schultz, 5 S. & R. 36. Upon a summons, unless there is service within the jurisdiction, there can be no judgment for want of appearance against the defendant.

The rules upon this subject in courts of equity, are very succinctly, and, for our purposes, sufficiently ‍‌​​​‌‌​​‌‌‌‌‌‌​​​​​​‌‌‌​‌‌‌​​‌​​​​​‌​‌‌​​‌​​‌‌‌‌‍stated in Adams on Eq. 322. “ In cases where persons interested are out of the jurisdic*457tion of the court, it is sufficient to state that fact in the bill, and to pray that process may issue on their return; and if the statement be substantiated by proof at the hearing, their appearance in the suit will be dispensed with. The power of the court to proceed to a decree in their absence will depend on the nature of their interest, and the mode in which it will be affected by the decree. If they are only passive objects of the judgment of the court, or their rights are incidental to those of parties before the court, a complete determination may be obtained. But, if they are to be active in performing the decree, or if they have rights wholly distinct from those of the other parties, the court, in their absence, cannot proceed to a determination against them.”

It will be seen from this brief review that it has not been the policy of our jurisprudence to bring non-residents within the jurisdiction of our courts unless in very special cases. In proceeding against them for torts, even property belonging to them cannot be reached by process, and in cases of contract nothing but the property can be affected unless thе defendant voluntarily appear and submit to the jurisdiction. We may congratulate ourselves that such has been the policy, for nothing can be more unjust than to drag a man thousands of miles, perhaps from a distant state, and in effect compel him to appear and defend under the penalty of a judgment or decree against him fro eonfesso.

The Act of 1859 ought, therefоre, to receive a construction in harmony with this policy. There exists no good reason why courts of equity should be invested with a more enlarged jurisdiction against non-residents than courts of law. On the contrary, as trial by jury is a constitutional right guarantied as well to strangers as to our own citizens, the inclination should be in a different direction. Though it be an undoubted principle, thаt wherever a court of equity has jurisdiction, it will go on to make a complete decree so as to settle the entire controversy between all the parties, it would be an extreme consequence from that principle to hold, as we are asked to do in this case, that any subject of property within its reach will give it jurisdiction of the person of a nonresident defendant so as to authorize a service of process upon him, in any other state or country, and to enter a personal decree against him, if he does not appear for the payment of money. Such must be praotieally the consequences, if the contention of the appellant is supported, and the ordеr of the Court of Common Pleas of Lycoming county held sufficient to bring the defendant into court to answer the appellant’s bill. A defendant living in á remote state or foreign country, charged by a bill in equity with a fraud, the damages for which are estimated and claimed to be thousands of dollars, becomes subject to the jurisdiction of this, to him, foreign tribunal, not, let it be remarked, by voluntаry appearance in a case where there has been no service, but by service *458of process upon him, if fifty dollars of the fruits of the alleged fraud can be followed and ear-marked in a share of stock, a horse or any goods or chattel. A construction which leads logically to such a result cannot be sound, and would require that the legislаture should have used language making their intention unquestionable. It would be to impute to the legislature a disregard of the most important principle of all municipal law of Anglo-Saxon origin, that a man shall only be liable to be called on to answer for civil wrongs in the forum of his home, and the tribunal of his vicinage, though his property may be subject to the jurisdiction of the courts of the country where it may happen to be.

If we examine the language of the Act of 1859, we must remark that it is strictly and carefully confined to two classes, of cases. First, where a suit in equity has been or shall be instituted, concerning goods, chattels, lands, tenements or hereditaments, or for the perpetuating of testimony concerning any lands, tenements ‍‌​​​‌‌​​‌‌‌‌‌‌​​​​​​‌‌‌​‌‌‌​​‌​​​​​‌​‌‌​​‌​​‌‌‌‌‍and so forth, situate or being within the jurisdiction of the court, or concerning any charge, lien, judgment, mortgage or encumbrance thereon. And second, where the court have acquired jurisdiction of the subject-matter in controversy, by the service of its process on one or more of the principal defendants.

As to the cases comprehended in the first clаss, we are of opinion that the bill must be confined, at least so far as the interest of the foreign defendant is involved, to a prayer for a decree affecting only the property in question. If it goes further and asks for relief by a decree against the defendant, personally, though it would be entirely competent for the court to make such decree, if the person of the defendant was within their jurisdiction, it is not a case within the purview of the act, and the court has no authority to direct the service of process upon the defendant. Had the bill in this case been confined to the prayer for relief as to the ninety-eight shares of the capital stock of the Williamsport and Canada Lumber Company, standing upon their books in the name of the defendant Walton Dwight, there would be plausible ground upon which to sustain the service of the process upon him. It may be that shares of stock in an incorporated company within the jurisdiction are within the comprehensive terms “goods and chattels.” It is worthy of remark that the English Statutes of 2 Wm. IV., c. 34, and 5 Wm. IV., c. 82, providing for the service of process upon defendants abroad, applied to such suits only as had reference to hereditaments in England, Wales or Ireland, or to encumbrances thereon, or to stock or shares, or the dividends thereof: Adams on Equity 327. It is unnecessary, in the view we have taken, to express any opinion upon this question.

As to the second class, there is certainly some uncertainty, in knowing what the legislature meant by a principal defendant. The contention here has been that the Williamsport and Canada Lumber *459Company are principal defendants. , After the best consideration we have been able to give to this question, we have come to the conclusion that by “principal defendants,” the legislature meant what in the chancery books are more familiarly and commonly known as “active,” as distinguished from mere “passive” parties. Mr. Justice Washington explains this distinction in his usual clear and satisfactory manner in his opinion in Joy v. Wirtz, 1 Wash. C. C. Rep. 518. “ In deciding who ought to be parties, it is necessary to distinguish between active and passive parties; between those who are so necessаrily involved in the subject in controversy and the relief sought for, that no decree can be made without their being before the court; and such as are formal or so far passive, that complete relief can be afforded to those who seek, it, without affecting the rights of those who are omitted. The case of Fell and Brown, 2 Brown’s Chanc. Rep. 276, presents us with the rule and with a strong illustration of it. A second mortgagee brought a bill against the first, to redeem, without making the heir of the mortgagor a party, who was stated to be resident in another country. An objection for want of parties being made, the Chancellor (Lord Thurlow) observed that there was a distinction as to proceeding in the absence of parties abroad, bеtween their.being active and passive; that the mortgagor or his heir cannot be considered as a passive party, because the decree is that the second mortgagee shall redeem the first, and the mortgagor redeem him or stand foreclosed on this account; the mortgagor or his heir being an active party, the court cannot proсeed without him, and his being a party cannot be dispensed with, though he is not amenable to the process of the court. Many other cases might be mentioned equally strong with that just cited; and in all of them the rule is so stubborn, that I doubt, if, under any circumstances, it can be made to bend to the plea of necessity. But if a decree can he made without affecting the rights of a person not made a party, or without his having anything to perform necessary to the perfection of the decree, reason as well as adjudged cases will warrant' the court in proceeding without him, if he be not amenable to the process of the court or no beneficial purpose is to be effected by making him a party.” Now upon an examination of the bill in this case, it is very apparent that Walton Dwight is the only active party against whom relief can be prayed. The others are passive merely. It is true that the bill prays that the Williamsport and Canada Lumber Company shall transfer to the plaintiff ninety-eight shares of the capital stock thereof, now standing upon their books in the name of Waltоn Dwight. But the bill shows no title or interest of the company in the stock upon which a transfer by them could operate. The legal title of the stock being in Walton Dwight, he alone could transfer it; the equitable title the plaintiff alleges to be in him. The corporation *460are merely the custodians charged with-the duty of seeing that no improper transfer be made. The only decree which the plaintiff could properly ask against the company, would be to enjoin them from permitting Walton Dwight to transfer it, and allowing the plaintiff to do so. The court might as well order that its own prothonotary should transfer ‍‌​​​‌‌​​‌‌‌‌‌‌​​​​​​‌‌‌​‌‌‌​​‌​​​​​‌​‌‌​​‌​​‌‌‌‌‍the stock to the plaintiff under the seal of the court, as the company. The Williamsport and Canada Lumber Company then are not principal defendants. No decree whatever is- asked against Anson G. P. Dodge, except that he be made a party, and it cannot be seriously pretended that he is a principal defendant within the intention of the act.

The other questions in the cause may be very briefly disposed of. Walton Dwight having been served with process according to the ordеr of the court, moved the court to vacate and strike off the order of service, and to set aside the service made upon him in pursuance thereof. This motion was refused by the court in Lycoming county. He then appeared de bene esse, reserving all exceptions to the order and service. When compelled by rule to answer, he did so, under the samе special exception. It is clear that he could not appeal from the interlocutory order of the court, refusing his first motion, and it is equally clear that any and every step which he might afterwards take for his own benefit or security in the course of the proceedings cannot estop or preclude him from setting up the want of jurisdiction at any stagе. It was an objection which lay at the foundation of the whole case, and if it had gone on to a final decree either in Lycoming or Tioga county, the same question would have been open upon an appeal to this court. Upon the frame of the bill, it is plain that the court could make no decree affecting the right of Walton Dwight either to thе shares of stock, or of Mrs. Anna Dwight in the property held by Anson G. P. Dodge, without these defendants, Mr. and Mrs. Dwight, being legally brought into court and made parties to the suit, which, as we have seen, they have not been. It is unnecessary, therefore, to decide the question whether the cause was legally transferred from Lycoming to Tioga county. Neither court had any jurisdiction, and the order of the court of Tioga county was therefore right.

Decree affirmed, and appeal dismissed at the costs of the appellant.