Eastman v. Dearborn, 63 N.H. 364

Eastman v. Dearborn

63 N.H. 364 | N.H. | 1885

In the former suit, the defendant's property was attached and sold, and the proceeds applied in part satisfaction of the judgment then obtained. The validity of that attachment, or its sufficiency to enable the plaintiff to enter the action, and give the defendant notice of the suit by publication according to the statutes (G. L., c. 223, 8. 9, c. 226, ss. 3, 4), cannot be questioned in this suit. If the proceedings by which the property was appropriated were irregular because the property was exempt from attachment, advantage of the irregularity cannot be taken in a suit to enforce the collection of the unsatisfied balance of the judgment.

The judgment, which is attempted to be made the foundation of this action of debt, was rendered upon default without other notice of the suit to the defendant, who was a non-resident, than that given by publication. At common law a judgment is void unless rendered upon personal notice to the defendant or his appearance to the action; and this rule, as a part of the body of the common law, prevails in this state. Wilbur v. Abbot,60 N.H. 40, and cases cited. No court has jurisdiction beyond the state which created it, and cannot effectively send its process for execution beyond the limits of the state; and an order of notice by publication made within the state cannot be more effective than a summons or other process sent out of the state. The natural and just right, universally recognized, which every person has of appearing and answering to an action before he shall by a judgment be deprived of liberty or property, is not met or sustained by process sent abroad for service, nor by a newspaper notice which may or may not reach the party, and no jurisdiction of the person is acquired *366 by notice of that kind. Judgments may be valid for some purposes, and void for other purposes. That a judgment be valid against all parties and for all purposes, the court in which it is rendered must have jurisdiction of the subject-matter of the suit, and of the person or persons against whom it is rendered. State v. Richmond, 26 N.H. 232. By the attachment of the defendant's property within the state in the former suit, jurisdiction of the property was acquired, and the judgment rendered without other notice to the defendant than the statutory one by publication, and without his appearance to the action was valid for the purpose of appropriating the attached property to the payment of the debt, and for no other purpose. No jurisdiction of the defendant's person having been acquired by the proceedings, the judgment is void as a personal one against the defendant beyond its effect upon the property taken, and cannot be made the foundation of another suit to collect the unsatisfied part. Boswell's Lessee v. Otis, 9 How. 336; Cooper v. Reynolds, 10 Wall. 308; Pennoyer v. Neff, 95 U.S. 714; Brooklyn v. Insurance Co., 99. U.S. 362; St. Clair v. Cox, 106 U.S. 350; Pana v. Bowler, 107 U.S. 529; National Bank v. Peabody, 55 Vt. 492. The principle is recognized and adopted in the fourteenth amendment to the constitution of the United States, which declares that "no state shall deprive any person of life, liberty, or property without due process of law." Notice of a suit to a non-resident debtor by publication as a substitute for personal service within the state cannot be due process of law, and a judgment rendered upon such notice without appearance of the defendant in a suit brought to determine the private rights and obligations of the parties can have no validity. The case of Kendrick v. Kimball, 33 N.H. 485, to the extent that it decides that a judgment rendered without personal service of process upon the defendant, or without his appearance in the suit, is valid as a personal judgment upon which an action of debt can be maintained, cannot be sustained.

Exception overruled.

SMITH and BLODGETT, JJ., did not sit: the others concurred.