Cudabac v. Strong

67 Miss. 705 | Miss. | 1890

Woods, C. J.,

delivered the opinion of the court.

This was ejectment brought by appellant against appellee. The appellant had, prior to the ejectment suit, sued out an attachment against Danner, McMillon and Bobertson, who were all non-residents of this state. The attachment writ was levied on certain lands of defendants, but not on the lands embraced in the ejectment suit. Notice was given the non-resident defendants as prescribed in sections 1857 and 2438, code of 1880. The defendants making no appearance in the attachment proceedings, a personal judgment was taken against all of them for the amount of Cudabac’s demand, and a special judgment was likewise entered condemning the lands levied upon to be sold to satisfy the debt due. The lands levied upon were accordingly sold, but the proceeds of this sale failing to satisfy the judgment, Cudabac had writs of fieri fados subsequently issued, which were levied upon this land and the same was sold, Cudabac becoming the purchaser thereof at such sale, and receiving the sheriff’s deed thereto.

The consideration of this deed, and of the general judgment upon which it rests, opens the field of the controversy. The questions are : Did the court, in the attachment suits, acquire jurisdiction of the persons of the non-resident defendants so as to authorize the rendition of a personal judgment against them? And was the general judgment, rendered against them upon notice only as prescribed in sections 1857 and 2438 of the code, a valid judgment?

It might be sufficient to say that section 2467 seems to have been overlooked entirely by counsel, and that this section, when brought to light, itself effectually disposes of the contention. This section distinctly declares that, in attachment suits, in this state, “ if the defendant shall not appear and plead to the action, in pursuance of the notice, on proof of publication thereof” (or on proof of actual notice served as provided in sections 1857 and 2438), “ the court shall give judgment against him by default, and award a writ of inquiry, if necessary; but on such judgment by default no execution shall issue, except against the property on which the attachment has been served, etc.” And when we recall, in addition, the exposition of said section 2467 made by this court in Tabler, Crudup & Co. v. Mitchell, 62 Miss. 437, there would seem to be left no ground for appellant’s contention. Said Cooper, J., in that case: “ The judgment against the defendants, though in form a personal one, will not support an execution against their general estate. Its operation is by the statute expressly limited to the property attached. Code of 1880, § 2467.”

The misapprehension of counsel has doubtless arisen from inadvertently confounding the mere notice of the pendency of the attachment suit, required to be given the non-resident debtor, with legal process, which, when executed, gives the court jurisdiction of the person. It cannot be that the legislature, by substituting the service of actual notice upon the non-resident debtor, in place of the uncertain notice by publication in newspapers, with copies forwarded by mail to the defendant, meant to do more than provide a more sure and effective notice for the non-resident.

Section 2438 in its very terms is a substitution merely of notice actually given the non-resident for the far less satisfactory notice by publication. While the word summons is used in this section in speaking of this substituted notice, and while the word summons i.) one of the recognized names given to legal process, yet it would do manifest violence to the plain purpose of the statute to hold that this substituted notice, denominated by the statute in general phrase a summons, was designed to operate as legal process, and as legal process of such amazing vigor and potency as to have inherent in it extra-territorial force. To so hold would necessarily involve us in remediless conflict and confusion.

And we are then brought to observe, generally, that process from the courts of this state can have no extra-territorial force; it cannot run into another state and compel persons there residing to respond in person and submit themselves to our tribunals. International law and comity between sovereign states forbid. As was said by Mr. Justice Field in Pennoyer v. Neff, 95 U. S. 714: “ Process from the tribunals of one state cannot run into another state, and summon parties there domiciled to leave its territory and respond to proceedings against them. Publication of process or notice within the state where the tribunal sits, cannot create any greater obligation upon the non-resident to appear. Process sent him out of the state and process published within it, are equally unavailing in proceedings to establish his personal liability.”

The grounds upon which courts claim and exercise complete jurisdiction over property of non-residents situated within their territorial limits rest upon wholly distinct foundations, viz., the inherent, indispensable and indisputable power of the local tribunal to deal with all property within the territory within which the tribunal sits, without regard to its ownership. Jurisdiction over all property, that of non-residents and residents alike, is necessarily vested in the courts of the state within which the property is situated ; but to deal with property of non-residents, the local tribunal need acquire no jurisdiction over the person of the non-resident. The local tribunal may and must pronounce judgment against the property of the non-resident according to the law of its territory, but it can pronounce no personal judgment against tbe non-resident debtor until it has acquired jurisdiction of his person. This cannot be done by publication or other notice within the state, nor by notice, in any form, sent to the non-resident debtor out of the state.

But it is useless to enlarge, for these views are generally, not to say universally, maintained in all courts, state and federal.

"VYe are of opinion, therefore, that the judgment of the court below was correct, and the same is accordingly,

Affirmed.