Fiske v. Anderson, 12 Abb. Pr. 8

Fiske v. Anderson

12 Abb. Pr. 8 | N.Y. Sup. Ct. | 1860

Lead Opinion

By the Court.—Bonnet, J.

—The important question to be decided in this case is, whether or not a judgment recovered against a non-resident defendant on service of summons by publication, pursuant to the Code, is conclusive and effectual for all purposes and to the same extent, as if personal service of the summons had been made on the defendant within this State.

The Code provides (§ 1|4) for the service of a summons on the defendants within this State; and (by section 135) that when the defendant cannot, after due diligence, be found within the State, and that fact appears by affidavit to the satisfaction of the court or judge, and it in like manner appears that a cause of action exists against the defendant, or that he is a proper party to an action relating to real property in this State, such court or judge may grant an order that service be made by publication of the summons, “where the defendant is not a resident of this State, but has property therein, and the court has jurisdiction of the subject of the action.”

That when publication is ordered, personal service of a copy of the summons and complaint out of the State, is equivalent to *14publication and deposit in the post-office. And that the defendant against whom publication is asked, on application and sufficient cause shown at any time before judgment, must be allowed to defend the action, and (except in an action for divorce) upon good cause shown, may be allowed to defend after judgment, or at any time within one year after notice thereof, and within seven years after its rendition, on such terms as maybe just; and, if the defence be successful, and any part of the judgment has been collected, may have restitution awarded.

It has been considered well-settled law that jurisdiction of the person of a defendant could not be obtained by any court except by his voluntary appearance or by due service of process, and that effectual service of process could not be made on any person beyond the jurisdiction of the court out of which the process issued. (Fanton a. Garlick, 8 Johns., 194; Anderson a. Heriot, 4 Cow., 524, on note.)

By the section of the Code above referred to, personal service of summons and complaint out of this State, is only made equivalent to publication and deposit in the post-office, and it can have no greater effect.

The Code also provides (§ 227), that in an action for the recovery of money against a non-resident defendant, the property of such defendant may be attached as security for the satisfaction of such judgment as the plaintiff may recover. And (§ 237) in case judgment be entered for the plaintiff in such action, that the sheriff shall satisfy the same out of the property attached in the manner by the Code directed.

These provisions of the Code afford, as I think, some grounds for the position taken by the defendant in this suit, that it was the intent of the Legislature to make a judgment obtained upon substituted service of summons by publication, effectual only against property of the defendant which was within the jurisdiction of the court when the action was commenced, or while it was pending, and which was or might have been taken under attachment therein.

But I do not deem it necessary now to express an opinion "on this very important point. The judgment in this case, as I think, should be reversed, and a new trial ordered on another ground.

, As I understand the Code (§135), the courts of this State *15have no jurisdiction to order service of summons on a non-resident defendant by publication, unless the defendant has property within the State when the order is made. It is not sufficient that it be made to appear to the satisfaction of the court or judge, by affidavit, that such is the fact, nor that it be sworn to in the most positive terms, or by any number of affidavits, but the fact must exist, the defendant must have property here, or the court can have no jurisdiction to make the order, and this question of jurisdiction may be at any time raised by the defendant. If the court had not jurisdiction to make an order of publication in this action, the judgment is void.

If, then, it be conceded that the judgment offered in evidence in this case was prima-facie evidence of debt against this de-' fendant (as to which it is not necessary now to express an opinion), the defendant in his answer had stated, and at the trial offered to prove, facts, which, if established, would, in my opinion, render that judgment void. The offered evidence was ruled out by the court, and the defendant excepted. I think this was error, and that the judgment appealed from should be reversed, and a new trial ordered, costs to abide the event of the suit.

Concurrence Opinion

Hogeboom, J.

—I concur in the result of the opinion of Justice Bonney in this case, and in his views upon the point upon which the new trial is granted. The jurisdiction of the court to make the order of publication depends upon the evidence, in point of fact, of one of the five different cases or contingencies on which alone publication can be ordered. The existence of these it is not for the judge granting the order to determine, upon an ex-parte application, in such a way as to bar or exclude the defendant. He has had no opportunity to be heard on this question, and section 135 makes the jurisdiction to depend, not upon the judge who grants the order being satisfied of the fact, but upon the existence of the fact itself. I incline to think the affidavit produced to the officer who makes the order, if incorporated in the judgment-roll, or the recital of the fact in the judgment-roll itself, is sufficient prima-facie evidence of the fact, but it is a jurisdictional fact, and is open to contestation, unless the party has had an opportunity to controvert it. When that has been done, it becomes thereby an established fact, and is *16not open to examination afterwards, except upon a direct review of the proceeding. Suppose the affidavit on which the order was granted stated that the defendant was a foreign corporation, or that the defendant was a non-resident, or that the subject of the action was real or personal property in this State, or that the action was for divorce, when from the papers themselVes, or from extrinsic evidence, it was made clear that the fact was in each instance the reverse of this,—can it be doubted that the party aggrieved would have a right to set aside the proceedings, or dispute their validity, whenever the opportunity should be presented, unless the fact had been before decided against him upon a hearing of the parties ? I think there can be no doubt of his right to do so, and that the rights of absent and non-resident defendants should, to this extent at least, be guarded from what may be a very oppressive proceeding.