65 Me. 251 | Me. | 1875
The plaintiff commenced a suit against the defendant, a non-resident, on which an attachment was made of his real estate. The writ described him as a resident of St. Louis, Missouri. Notice was given of the pendency of the suit in conformity with R. S., c. 81, § 19, by publication in a newspaper in this county. Judgment was rendered in favor of the plaintiff at
This is an action of debt upon the judgment thus obtained and the question arises, whether it is maintainable ; in other words, whether the court had jurisdictional authority to do more than render a judgment against the property attached.
The state has undoubted jurisdiction over property within its territorial limits. It may subject it to taxation. It may render it liable to the payment of debts, though its owner may reside in another state.
By B. S., c. 81, § 12, “in all actions commenced in any court proper to try them, jurisdiction shall be sustained, if goods, estate, effects or credits of any defendant are found within this state and attached on the original writ; and service shall be made as provided in the nineteenth section hereof.”
It has been settled by a uniform and unvarying series of decisions that a judgment obtained as was the one upon which this action is brought, while effective to bind the property of a nonresident, and to justify its appropriation to the payment of his debts, has no force and validity as against person or property outside the territory of the state in which it is rendered. The notice to be given by § 19, though given as required, will not give jurisdiction so that the judgment shall be binding elsewhere. Ewer v. Coffin, 1 Cush., 23. So a judgment similar in its character and with like incidents rendered in another state would have no force nor validity here. Middlesex Bank v. Butman, 29 Maine, 19.
The statute gives jurisdiction on certain conditions. What is the extent, what the limit, of the jurisdiction thus given ?
The jurisdiction is to be sustained, if goods, estate, effects or credits of a defendant are found within the state, and being found are attached. Without property and its attachment, the court has no jurisdiction. Both must concur. The jurisdiction is acquired by attachment. To what extent ? Not over the person of the defendant, for he is a non-resident. Not over other property; but
The judgment recovered by the plaintiff was clearly not of validity so as to constitute the basis of a suit without the state. What is its validity here ? It is not good against the person of the defendant, for he has never been within, nor submitted to, the jurisdiction of the court. It might have been levied upon the property attached, but no levy was perfected. What then is its effect ?
It is simply a proceeding in rern. It is a statutory process, by which a creditor, following the provisions of the statute, is enabled to appropriate the property of an absent debtor to the payment of his debts. If the appropriation is made, it is protected. If not made, the judgment ceases to have any validity, so that it can constitute the basis of a new judgment.
The authorities entitled to the highest consideration concur in the views already expressed. In Boswell’s Lessee v. Otis, 9 Howard, 336, McLean, J., says: “jurisdiction is acquired in one of two modes: first, as against the person of the defendant, by the service of process; or secondly, by a procedure against the property of the defendant, within the jurisdiction of the court. In the latter case the defendant is not personally bound by the judgment, beyond the property in question. And it is immaterial whether the proceeding against the property be by an attachment or bill in chancery. It must be, substantially, a proceeding in rem.” The effect of a judgment against a non-resident debtor was again under the consideration of the supreme court of the United States in Cooper v. Reynolds, 10 Wallace, 308, and the court there held, that the only effect of a judgment against a nonresident was to subject the property attached to the payment of the demand which the court might find due to the plaintiff. “The
In Lovejoy v. Albee, 33 Maine, 415, it was decided that when the' property of a non-resident is found within the state, a judgment against him will be effectual only as' a proceeding in rem, and binding upon the property attached. In Easterly v. Goodwin, 35 Conn., 273, where the facts were similar to those in the case at bar, it was held, that a judgment rendered in an action upon which the property of a non-resident defendant had been attached, but in which no personal service had been obtained, was not a judgment in personam, and could not be the basis of an action of debt in the same court, and that its only effect was to authorize the appropriation of the property attached, to the payment or satisfaction ' of the judgment recovered in the suit in which • the attachment had been made.
At the first glance, the case of Granger v. Clark, 22 Maine, 128, may perhaps be regarded as adverse to the views here expressed. But the decision there rendered rests upon the fact that a want of jurisdiction was not apparent of record. But in the case at bar, it appears from the record produced, that the defendant was a resident without the state; that there was no personal service upon, nor any appearance by him. If upon inspection of the record, it appears that judgment has been rendered without notice to the defendant, the judgment will be regarded as absolutely void. Penobscot Railroad Company v. Weeks, 52 Maine, 456.
