Dexter v. Lichliter, 24 App. D.C. 222

Dexter v. Lichliter

24 App. D.C. 222 | D.C. Cir. | 1904

Mr. Justice Shepard

delivered tbe opinion of the Court:

1. Section 1531 of the Code confers upon defendants in actions at law upon contracts or for the recovery of personal *227property under the conditions therein declared, the right to bring in a third party who “has or makes claim to the subject of the action;” and, to that extent, is an adaptation of the ordinary equitable remedy of interpleader.

“It is an elementary principle of jurisprudence that a court of justice cannot acquire jurisdiction over the person of one who has no residence within its territorial jurisdiction, except by actual service of notice within the jurisdiction upon him or upon someone authorized to accept service in his behalf, or by his waiver, by general appearance or otherwise, of the want of due service.” Goldey v. Morning News, 156 U. S. 518, 521, 39 L. ed. 517, 518, 15 Sup. Ct. Rep. 559.

Clearly, this is the only kind of service of notice contemplated by the above section, for it contains no provision for service ontside the jurisdiction, either personal or by publication. Nor does any other section of the Code make provision for service of notice as was had in this case. The substitution of notice by publication for personal service within the jurisdiction, and that alone, is provided for in § 105, where the defendant cannot be found, and is “shown by affidavit to be a nonresident, or to have been absent from the District for at least six months, or against the unknown heirs or devisees of deceased persons, in suits for partition, divorce, by attachment, foreclosure of mortgages and deeds of trust, the establishment of title to real estate by possession, the enforcement of mechanics’ liens, and all other liens against real or personal property within the District, and in all actions at law and in equity which have for their immediate object the enforcement or establishment of any lawful right, claim, or demand to or against any real or personal property within the jurisdiction of the court.” And § 106 provides that “no order for the substitution of publication for personal service shall be made until a summons for the defendant shall have been issued, and returned, ‘Not to be found,’ and the nonresidence of the defendant, or his absence for at least 6 months, shall be proved by affidavit to the satisfaction of the court.”

2. The service of notice being unauthorized and invalid, the defendant had the right, as exercised in this case, to appear *228specially for the purpose of attacking the same and defeating the jurisdiction sought to be obtained over his person thereby. The special appearance limited to this purpose cannot be made to operate as a waiver of his rights. Mexican C. R. Co. v. Pinkney, 149 U. S. 194, 209, 37 L. ed. 699, 705, 13 Sup. Ct. Rep. 859; Goldey v. Morning News, 156 U. S. 518, 526, 39 L. ed. 517, 520, 15 Sup. Ct. Rep. 520. But it is also well settled that, if a party would retain the benefit of his objection to the jurisdiction over his person he must keep out of the case for all purposes except to make that objection. Guarantee Sav. Loan Invest. Co. v. Pendleton, 14 App. D. C. 388, 389, and cases there cited. When, therefore, any action is taken in the case, clearly beyond the purposes of the special objection, it will, like a general appearance, operate as a waiver of the special objection, even in eases where the party may not have intended it to have that effect. Wabash Western R. Co. v. Brow, 164 U. S. 271, 278, 41 L. ed. 431, 434, 17 Sup. Ct. Rep. 126.

Applying these rules to the act of the respondent in filing the affidavit after his motion, we are of the opinion that it has not the effect of a general appearance, and was, therefore, not a waiver of his special objection. The affidavit, with exhibit included, is certainly not a formal appearance, and does not purport to be one. It is not entitled as a pleading, is not one in form, alleges no defense to the action, and asks for no relief. It could serve no purpose of the respondent other than as a support to his objection to the jurisdiction, and to that end furnished proof of his actual residence at the time of the attempted service of notice, — a fact which did not otherwise appear. While it may not have been necessary to the maintenance of his objection to that service to show that he was, in good faith, a nonresident of the District of Columbia at the time it was had in the State of New York, the affidavit was evidently intended for that purpose, and for no other. The fact, if not material, was nevertheless relevant to the subject-matter of the special appearance, and cannot justly be given an effect prejudicial thereto. The conclusion at which we have arrived is in accord with the doctrine of the following, well-considered cases: Mojar*229rieta v. Saenz, 80 N. Y. 547, 549; Re Kimball, 155 N. Y. 62, 71, 49 N. E. 331; Franklyn v. Taylor Hydraulic Air Compressing Co. 68 N. J. L. 113, 52 Atl. 714.

3. The following questions may arise at a subsequent stage of the proceedings, and will not, therefore, be now determined:

(1) Whether a defendant in an action upon a contract can, by complying with the conditions of § 1531, convert the same into one having for its “immediate object the enforcement or establishment of any lawful right, claim, or demand, to or against any real or personal property within the jurisdiction of the court,” so as to authorize service by publication upon the resident of another State under the provisions of § 105.

(2) Whether a defendant seeking to avail himself of the provisions of § 1531 can offer to pay into the registry of the court a sum less than that stipulated in the contract sued upon.

Eor the reasons heretofore stated, the order will be reversed with costs, and the cause remanded with direction to set aside the return. It is so ordered.