1 Conn. 154 | Conn. | 1814
Lead Opinion
[after stating the principal facts.] As to the first matter alleged in the plea in abatement, to wit, that the service of the petition was void, inasmuch as the respondent, now defendant in error, was not an inhabitant of this state, and was but transiently in it, when the copy was left with him, I am clearly of opinion that it is unavailable. There is no difference as to the validity of such service, between suits at law and in chancery. As to suits at law, one mode of service is to leave a copy of the writ at the defendant’s usual place of abode, which by statute is good in every case where the defendant, at the time of service, belongs to this state. Another mode of service is to read the writ in the hearing of the defendant ; and this, if done by a proper officer, or by one properly authorized, is good service in all cases, as well where the defendant does not belong to this state as in those where he does belong to it. This is called personal service, and by the statute is good notice of the suit.
Originally, the General Assembly exercised all chancery jurisdiction; and it was enacted, that all petitions returnable to that forum should be served by leaving a copy of the petition with the respondent, or at his usual place of abode. When chancery jurisdiction was given to the superior and county courts, the same powers were given to these courts in all equity cases coming under their cognizance as had been exercised by the General Assembly in cases of the like kind. Petitions have uniformly been served in the same manner as those were which were returnable to the General Assembly. And never has there been a distinction as to service on the person of the defendant, whether he did or did not belong to the state. In an action at law, the writ must be read in the hearing of the defendant: In a petition in chancery, a copy must be left with him. In all cases this kind of service is good. When I speak of actions at law, I mean those in which the defendant is summoned only to answer to the suit.
I am of opinion also, that there is enough stated in the petition to warrant the interposition of the court. At any rate, I am not prepared to say, that a court of chancery can give no relief in such a case as is presented in the petition.
As to the third matter alleged by way of abatement, to wit, the bill in chancery, filed by the defendant in error
On the other side it was said, that the proceedings were not coram non judice, inasmuch as there was in the bill a general prayer for relief, and under this general prayer a decree might be made vesting these lands, or a part of them, in the defendant in error ; and whether the court could give relief in the precise mode specifically prayed for, was totally out of the question. Further, it was said, that though in some instances actions on a contract might be pending in favour of both parties, each against the other, at the same time, yet that this was not an universal rule : That in all cases where one action or suit will settle the rights of the parties, two are not sustainable ; and that the case under consideration is of this latter kind ; and if so, a former suit
Upon the best consideration I have been able to give to the question, I am of opinion that the proceedings before the court in Ohio are not coram non judice. It appears by the record, that that court has jurisdiction in chancery suits ; consequently, if there are proper parties before it, or rather if the plaintiff in that suit has a right to call the defendants before the court to answer his claim, and they are properly called, all the proceedings are as regular as if they had been before a court of chancery in this state. It matters not, I apprehend, as to the point of jurisdiction, whether or not a court of chancery can, beyond all question, give relief in the case stated in the bill. It is sufficient if application be made to such court for relief ; or, at any rate, if plausible grounds for relief are so stated. The present case no doubt is a proper one to be brought before a court of chancery ; and unless relief can be obtained in such court, it can be obtained no where. If there had been in the bill a prayer for a specific execution of the contract, by conveyance of the land, or any part of the land, this of itself would have given jurisdiction to the court, whether the parties lived out of the state of Ohio, or in it. This is a fixed principle in chancery, and has been fully adopted in this state. Indeed, by a statute law of this state
But supposing for argument’s sake, that this principle is not so well established, yet, as has been observed, the case presented by the bill is properly a chancery case, apart from the circumstance of there being no specific relief prayed as to the land. The plaintiff in the bill says, he tendered to Hart and Mather performance of his part of a contract made by Kirkland his assignor, on the very day, and in the very place, designated by the contract did the performance of it; and that what he did was a literal performance of his part of the contract, except that the securities tendered were not made payable in Hartford; and that they were not so made payable was owing to his ignorance of the obligation he was under so to make them payable. He says further, that Hart and Mather availing themselves of this circumstance, refused, after the day, to receive securities from him, all made perfectly right, and to make an assignment of the scrip according to the terms of the contract, but chose rather to pocket the money they had received from him and his assignor as part of the consideration. Under these circumstances, he prays for relief. This, I say, is a proper case for the exercise of chancery jurisdiction, and whether or not a decree can be made respecting the land, yet if the court can adjudicate between the parties, the bill cannot be thrown out on the ground of being coram non judice. This, I think, is clear. The question then is, even supposing it necessary to give the defendants legal notice of the suit, whether the parties are so before the court, and the cause is of such a kind, as that this particular court can take cognizance of it.— There can be no difficulty about the cause, even going on the most narrow ground, inasmuch as the contract has reference to property within the jurisdiction of the court. It follows then of course, if the court can get hold of the defendants (if I may use the expression) ; that is to say, if the
But it may be said, that the subpœnas in the present case were served on the defendants out of the jurisdiction of the court, and were inoperative as to giving it jurisdiction, inasmuch as the defendants could not be commanded to appear and answer to the bill ; that in fact they have never been legally notified of the suit. How the case would have been, (going on the ground that legal service of the subpœnas was necessary) if the defendants had taken no notice of the subpœnas, and never had gone before the court, it is unimportant to say, provided it appears by the record, as I think it does, that they have actually appeared, and have thereby given the court jurisdiction, as far as it was competent for them to do it.
I agree most fully, where the court has not on any ground jurisdiction of the cause, that no consent of parties will validate the proceedings. As for instance, no consent of parties can give a justice of the peace jurisdiction to try the title of land in an action of ejectment brought before him. No action to try the title of land lying in Hartford can by consent of parties be brought before a court in the New-Haven. But when the want of jurisdiction arises from want of notice to the defendant, by not serving the writ a sufficient number of days before the court, or from any other defect of service, this defect may be cured, and jurisdiction given, by the defendant's waiving every objection to the service of the writ, and voluntarily appearing before the court, and answering to the suit.
Before I apply these principles more particularly to the case under consideration it may be expedient to observe, in order to enforce the position that personal service of the subpœnas in the state of Ohio would have given the court jurisdiction, that the practice in this state is exactly conformable to this idea. It is the universal practice in this state, and may be said to be the common law of the state,
A few words more now with respect to the appearance of the defendants. The record shews, that they went before the court, and filed their motion for the removal of the cause to the circuit court, not at all objecting to the jurisdiction on the ground of a want of legal notice. This step of the defendants would alone, in my opinion, validate all the proceedings. But further, the record shows, that on this motion being overruled, there was a continuance of the cause. At the next court a demurrer is taken to the bill; and, to be sure, one cause of demurrer assigned is, that the court had not jurisdiction. It will be observed, however, that no exception is taken to the jurisdiction for want of legal notice.
This exception to the jurisdiction, if the proper ground had been assigned, I think comes too late; and besides, is improperly pleaded. A plea to the jurisdiction must be the first plea, and must be mixed with nothing else. Clear I am, therefore, that the proceedings in the court in Ohio are not coram non judice.
As to the operation of the proceedings, going on the ground that they are regular, and that the court in Ohio has jurisdiction of the cause, I had some doubt before the argument was closed. I was doubtful whether any other advantage could be taken of those proceedings than by moving for a continuance of the petition on which this writ of error is brought till a trial could be had of the bill in chancery in the state of Ohio. But on the whole, I have come to this conclusion, and with little or no doubt now remaining, that the plea in abatement grounded on the aforesaid proceedings, was well put in, and that the judgment of the court below on the same was right. I will not say, if the bill had been filed by the defendant in error before the court in Middlesex county, that the plea would have been available. Perhaps the petition in such case might have been considered as a cross-bill, and both petition and bill have been tried together. Whenever both processes are before the same court, there is no danger of injustice being done, or of hardship taking place, by trying the last process in point of time, first. Cases there may be indeed, where processes in favour of both parties may and ought to subsist at the same time. All cases of
Again, to test the principle that in such a case the first bill ought to abate the second, let us see what operation a judgment on the first suit would have on the second. If a judgment on the first bill would settle all the rights of the parties, it could unquestionably be pleaded in bar of the second, and would be available to bar all proceedings on it. This proposition certainly is very clear, and needs no argument to prove the truth of it. It seems to me, then, to follow conclusively, that a first process conclusively would abate a second.
It remains now but to consider whether a determination of the suit before the court in the state of Ohio, let it be either way, would not be conclusive as to every thing contained in the petition of the plaintiffs in error. The general ground stated for bringing the petition is, that the defendant in error will not bring a suit against them to try the question whether
In every point of view, the case must be with the defendant in error ; and I think the judgment ought to be affirmed.
Tit. 6. c. 1. s. 6.
Tit. 42. c. 30.
Dissenting Opinion
also dissented, and assigned his reasons in substance as follows.
On the sufficiency of the petition it appears to me there can be but one opinion.
The plea in abatement to the jurisdiction of the court rests
If the person is within the local jurisdiction of the court at the time of the summons, and personally served, it is sufficient to give jurisdiction to the court. Strangers while here are under the protection of our laws, and owe a local obedience. When summoned, and the process returned to the court, and entered in the docket, the jurisdiction of the court attaches in the same manner it would attach by a like personal service in the case of a citizen of this state.
It was contended, that a court of chancery will not hold jurisdiction and pass a decree where it must of necessity be nugatory and unavailing ; that should the respondent go out of the state before a decree is passed, the decree would be defeated.
To this it may be answered, in every instance where the process is by summons, the defendant or respondent, before judgment rendered or decree passed, may withdraw his person and effects, so as to render a judgment or decree inoperative ; but because this is possible, the bare possibility that the judgment or decree cannot be carried into effect is not a sufficient reason for dismissing the action or petition from the court.
Should a foreigner contract a debt in Connecticut; for example, purchase a horse to carry him on his journey, and refuse to pay, the creditor at his election may summon or attach ; should he adopt the former mode, it would be a singular plea on the part of the defendant, to say, the action ought to abate and be dismissed, because he has it in his power to render nugatory any judgment that may be rendered.
The possibility or probability of the applicant failing to derive benefit from his process, is not the criterion by which the court are to be governed. If indeed it can be shewn to the court, that by any event anterior to the plea of abatement pleaded, any judgment or decree of the court that could be rendered or passed, must of necessity in all events be nugatory, the court will dismiss the application ; but that is not the case here. The objection only amounts to this : I can by leaving the state forever escape the effect of your decree.
Where the petitioners are the same, the respondents the same, and standing in the same relation, and the prayer of the petition is for the same thing, before a court of competent jurisdiction, it is but reasonable that the prior should abate the latter; because in such case the latter is vexatious. But that is not precisely this case. The prayer of the petition in Ohio is general, " that what pertains to justice may be done.” If by this prayer we are to understand that the remedy sought is against the person, there is a manifest want of jurisdiction in that court. The respondents in that petition, or either of them, never were in Ohio to be served with the petition, and in that way give jurisdiction. If then the court in Ohio have jurisdiction at all in the case, it is on the ground that specific relief is sought, and that proceeding is to act in rem. It was stated in the argument, and so appears from the record, that the respondents in that petition, before plea or answer, prayed a removal into the circuit court of the United States, which was denied; and that a demurrer was then taken to the jurisdiction. If so, the question whether the petition in Ohio is such as to give to that court competent jurisdiction remains yet to be decided there ; and the opinion of this court on that point cannot vary their decision. If then we abate the petition before us, on the ground of the petition pending in Ohio, and the court there should dismiss that petition, or it should be withdrawn, the petitioners in this court will be turned off without remedy, and driven probably to seek redress in some other state. Under these circumstances, as this court is not furnished with evidence (for a recital of the petition in the plea is not proof) that a petition is pending before a court of competent jurisdiction in Ohio between the same parties, and the matters offered in the plea in bar appear to me insufficient, and it can produce no conflict of jurisdictions, or argue any want of comity to that court, I think it would be correct to sustain the present petition, until the fate of the petition in Ohio is decided by that court. Should the petition there be sustained, and a decree passed embracing all the objects properly sought by the present petition, on proper proof of those facts, it will be time enough to say, that any decree passed by this court would be nugatory.
Judgment affirmed