132 N.J. Eq. 336 | N.J. Ct. of Ch. | 1942
One of the defendants, Milton Jacoby, appears specially by leave of the court, and moves to set aside service against him by publication for the reason that this is a suit in personam and not in rem.
Jacoby, who is a resident of the State of New York, obtained separate judgments in the Essex County Circuit Court, against one Jacob Englander and the complainant Louis B. Englander on a promissory note made by the former and endorsed by the latter. Jacob Englander was the principal debtor and complainant was in the position of surety. Jacob is the owner of a certain retail business conducted in Orange, New Jersey, which he caused to be put in the name of his wife Julia and his wife's uncle, Aaron Newman, in order to hinder, delay and defraud his creditors; or so the bill avers. The bill prays, among other things, that the principal debtor exonerate complainant; that the court decree that the retail business is the property of Jacob and liable for the judgment. Execution against and sale of the property may be had if the facts warrant, although this relief is not expressly prayed for. Annin v. Annin,
This is not a case in which the debtor had legal title to assets and transferred them fraudulently. But rather it *338
seems that the debtor purchased from a third party and had the vendor transfer title directly to his nominees. In either case, the property is equally available to creditors under the provisions of the Uniform Fraudulent Conveyance Law, R.S.25:2-7. Sweeney v. Carroll,
Our statute authorizing notice to non-resident defendants by publication and mailing, is comprehensive and extends to all cases where principles of due process do not require actual service within the state. R.S. 2:29-28; McAvoy v. Baumann,
In a suit quasi in rem, that is, a suit against a person in respect to a "res" which is within the state and under the control of the court, service of process within the state is not needed to support a decree which operates directly on the res.Hill v. Henry,
"The filing of a judgment creditor's bill for the purpose of setting aside a fraudulent conveyance, and thereby subjecting *339
the property to the payment of the judgment of the creditor, and the service of process thereunder, creates a lien in equity upon the equitable estate of the debtor in the property so conveyed."Bradley v. United Wireless Telegraph Co.,
There is another side to the case. The bill sets forth, as I have already mentioned, that Jacoby recovered judgment in the Essex Circuit Court against complainant. From the judgment, complainant appealed to the Supreme Court and filed a bond to secure payment of the judgment in the event of affirmance. The judgment was affirmed and Jacoby has begun an action in the Circuit Court against the surety on the bond. Complainant, on sundry grounds, prays that Jacoby be restrained from proceeding with execution on the judgment against complainant, or with further prosecution of his suit against the surety, until he has exhausted his remedies against Jacob Englander. Such relief is a remedy in personam.
The federal courts have developed the rule that when a court has acquired jurisdiction over the person of a litigant, either plaintiff or defendant, and thereafter an ancillary suit or proceeding is instituted against him, constructive service of process is sufficient because jurisdiction obtained in the original action supports the jurisdiction in the ancillary *340
one. Within the meaning of this rule, a suit to enjoin prosecution of an action or execution of a judgment is ancillary.Dunn v. Clarke, 8 Pet. 1;
*341Defendant's motion to vacate will be denied.