185 A.D. 555 | N.Y. App. Div. | 1918
The facts in this case as disclosed by the complaint and affidavits are substantially as follows: •
That John Sloan, Chester Glass and Joseph C. Blanch and the plaintiff, being each the owner of 1,000 shares constituting in the aggregate the entire capital stock of the Eastern Metals Corporation, entered into an agreement whereby for ten years they bound themselves and their personal representatives not to pledge, hypothecate or sell any of their shares without first offering the stock so proposed to be pledged, hypothecated or sold to the other parties to the agreement and to each of them or to their representatives, giving them a ten days’ option to purchase such shares or advance money thereon at the same price and terms as may, at any time, be offered in good faith by any person not a party to this contract.
Thereafter John Sloan was declared a lunatic in the courts of the State of Pennsylvania, and the defendant Fidelity Title and Trust Company of Pittsburgh was appointed committee of his property. On or about the 10th day of April, 1914, the Fidelity Title and Trust Company in its own name entered into an executory agreement with the plaintiff, whereby it agreed to sell fifteen months after the said date, and the plaintiff agreed to purchase, 875 shares of the stock of the Eastern Metals Corporation formerly belonging to the said Sloan, and it
In pursuance of this agreement the parties deposited the stock, notes and bonds with the Columbia-Knickerbocker Trust Company. Chester Glass and Joseph C. Blanch refused to consent to the sale and transfer of the stock and the performance of the agreement on the part of the Fidelity Title and Trust Company.
On or about the twenty-ninth day of June the plaintiff demanded of the Columbia-Knickerbocker Trust Company that it deliver to him the promissory notes and bonds of the Fairfield Oil Company, and again after the maturity of the notes the plaintiff in like manner demanded of the Columbia-Knickerbocker Trust Company the delivery of such notes and bonds to him, and again, immediately prior to the bringing of this action, made demand for the same and also demanded of the Fidelity Title and Trust Company that it consent to or
On the twentieth day of November plaintiff commenced this action by the service of a summons without a complaint upon the defendant Columbia Trust "Company (the successor to the Columbia-Knickerbocker Trust Company). At that time the notes, stock and a certain deposit receipt which had been substituted for the bonds were in the possession of the Columbia Trust Company. On the seventeenth day of November the attorney for the Fidelity Title and Trust Company demanded that the Columbia Trust Company deliver to him on behalf of the Fidelity Title and Trust Company the notes and securities described in the agreements and offered to furnish such indemnity as might be satisfactory to the said Columbia Trust Company. The Columbia Trust Company desired the advice of counsel, and on the twentieth day of November pursuant to advice of counsel the Columbia Trust Company agreed to deliver the notes and securities on the furnishing of a satisfactory bond of indemnity, and the bond having been given on the twenty-first day of November, in the presence of the plaintiff, the two notes and the deposit receipt and the certificate for 750 shares of the stock of the Eastern Metals Corporation and a check for $747.30, for interest, were delivered to the attorney for the Fidelity Title and Trust Company and he immediately deposited the same in the United States mail addressed to the Fidelity Title and Trust Company at Pittsburgh, Penn.
Thereafter, and on the 9th day of January, 1918, the plaintiff obtained an order for service of the summons in the action by publication or personally in the State of Pennsylvania upon the defendant Fidelity Title and Trust Company of Pittsburgh.
The summons, together with a copy of the complaint, was on the twelfth day of January served on the Fidelity Title and Trust Company of Pittsburgh in the city of Pittsburgh. The Fidelity Title and Trust Company appearing specially for the purpose of the motion only moved to vacate and set aside the order and to set aside the service of the summons and complaint upon it. This motion was denied. The learned justice at Special Term has written a very elaborate opinion
Assuming, but not holding, that the service of a summons is such an assertion of jurisdiction as would subject personal property to the jurisdiction of .the court so that a judgment rendered would be operative upon it without the court having in some manner by attachment or otherwise asserted its jurisdiction over the property, it is clear that the property must have been within the State at the time the court made its assertion of jurisdiction over the non-resident defendant and that was at the time that the order for substituted service of the summons was made. (Chesley v. Morton, 9 App. Div. 461; Freeman v. Alderson, 119 U. S. 185, 187.)
The service of the summons on the codefendant, the Columbia Trust Company, could give no jurisdiction over the non-resident defendant, nor did that service give the court jurisdiction over the property of the non-resident defendant which may have been within the custody of the Columbia Trust Company.
This will conclusively appear, if we consider what would have been the result of a default of the Columbia Trust Company and no service by publication or otherwise upon the non-resident defendant. No complaint having been filed or served, no attachment or injunction granted, by no possibility could a judgment have been enforced against the non-resident defendant’s property, which was not then within the State, nor could the Columbia Trust Company have been punished for
An action brought against a non-resident where substituted service or personal service outside of the territorial jurisdiction is made, is in the nature of an action in rem. (Pennoyer v. Neff, 95 U. S. 714.) This does not mean, however, that the fact of non-residence changes the character of the action, but as jurisdiction must be obtained over either the person or property there •must be property which can be subjected to the operation of the judgment over which the court asserts its jurisdiction by some appropriate proceeding. If there be no res within the State, there is nothing upon which the court can exercise its jurisdiction. (German-American Coffee Co. v. Johnston, No. 1, 168 App. Div. 31, 35.) In the case last above cited the action had been commenced against a non-resident by personal service of the summons and complaint within the State. He appeared and demurred to the complaint and thereafter died. A motion was made to revive the action and bring in his executors as parties defendant. The motion was granted and a supplemental summons was ordered to be served on the executors by publication or personally without the State. On appeal this court struck out the provision in the order for service of the summons. In Logan v. Greenwich Trust Co. (144 App. Div. 372; affd., on opinion in this court, 203 N. Y. 611) the action was brought against a non-resident and property attached. On the death of the defendant, an order for revival and service of the non-resident executors by pub
If the non-resident defendant should not appear and thus subject itself to the jurisdiction of the court, no judgment could be entered that could be enforced. If the court should order the agreement to be canceled and the notes and bonds to be delivered by defendants, how could it make its order effective? If it should grant an injunction restraining the defendants from selling and transferring the stock, the stock being in the possession of the non-resident defendant, how could it be restrained or punished for a violation of the order? Or if a receiver were appointed, what powers would he possess over • the defendant appellant? These questions are paraphrased from those asked by the Court of Appeals in Bryan v. University Publishing Co. of N. Y. (112 N. Y. 382, 387), and the court further said: “ The court can give no relief and the impropriety of issuing an order which, if it leads to a judgment, ‘ would operate on nothing in the State and be regarded by nobody out of it/ becomes apparent. . It offends every principle by which the jurisdiction of a court can be vindicated, and should not be allowed to stand.” The United States Supreme Court has recently held that the full faith and credit clause and the due process clause of the Federal Constitution (Art. 4, § 1; 14th Amendt. § 1) are harmonious, and because one may be applicable to prevent a void judgment from being enforced affords no ground for denying efficacy to the other in order to permit a void judgment to be entered. (Riverside Mills v. Menefee, 237 U. S. 189, 197.)
When the jurisdiction of the court is challenged it should be determined. The motion papers disclosed that this court had not acquired jurisdiction over the defendant appellant and any judgment that might be entered could not in any way be enforced against it. The motion to vacate the order and set aside the service made in pursuance thereto should have been granted.
The order appealed from will, therefore, be reversed, with
Clarke, P. J., Laughlin, Smith and Merrell, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.