Hogle v. Mott

62 Vt. 255 | Vt. | 1890

The opinion of the court was delivered by

Munson, J.

Audita guerela is brought to set aside a justice judgment in a trustee suit. The defendant in that suit was a non-resident, and there was no personal service of the writ. The case was continued, and an order made that notice be given the •defendant by the delivery of copies, as provided in R. L. 1102— 1101. On the day appointed, the defendant not appearing, proof of notice in accordance with the order was duly made. The defendant was then defaulted, and judgment was rendered «gainst him and against the trustee.

It is claimed that R. L. 1102-1101 do not apply to justice courts. We think it is clear that they do. These sections are a revision of No. 18 of the acts of 1878. Until the passage of that act, the law was silent as to the manner in which personal notice of the pendency of a suit should be given to an absent •defendant. The necessity for some enactment upon this subject was quite as apparent in the proceedings of justice courts as in those of the higher tribunals. The original statute applied to actions in “ any court,” and there is nothing in the language of the revision which indicates an intention to change the law in that respect. We fail to discover any substantial support for the claim that justice courts are not included. It is true that the papers are to issue under the hand “ of the clerk of the court, or of a judge or justice thereof,” and that so much of this-clause as relates to the clerk can have no application to justice-courts. But the part relating to the clerk is necessary to the-convenient operation of the law in courts having a clerk, while the remainder of the clause is a complete provision for courts-which have none. Indeed, the expression “ a judge or justice thereof ” must be held to include the justice court. No force can be given to the word “ justice ” but by this construction-There is no judicial officer known to our law as a “ justice except the justice of the peace. We could not adopt the construction'contended for without considering that the Legislature, in. referring to certain judicial officers, undertook to make a sufficient designation more unmistakable by adding a term properly applicable only to an officer it was intended to exclude. It would require positive and controlling language in other parts off the statute to bring us to such a conclusion.

Notice to a non-resident defendant in a justice suit in accordance with the requirements of these sections is therefore sufficient. That notice having been given here, only such further-proceedings were needed to reach and hold the money in the hands of the trustee as would have been necessary if there had-) been personal service of the writ.

It is claimed, however, that by this proceeding the non-resident is deprived of his property without due process of law, and that under the fourteenth amendment to the Federal Constitution the statute authorizing the proceeding is nugatory. The view taken by counsel would require personal service of process in every case of attachment. It is evident that such a requirement would effectually deprive a State of its jurisdiction over-the property of non-residents within its territory. It is only by-means of some notice other than personal service that the State-is enabled through its tribunals to appropriate property so owned, in satisfaction of the claims of its citizens. The right of a State to authorize notice by publication or other substituted service, in connection with an attachment of property owned by a nonresident, has been long and uniformly recognized. This method of ¡procedure, and the rights depending upon it, were not overthrown by the adoption of the fourteenth amendment. Notice in such manner as may be provided by the laws of the State where the property is located, is sufficient to support a proceeding in rem. An attachment by trustee process is such a proceeding. This judgment is of binding force so far as to-enable the party recovering it to hold the property found and attached in this State. The question of its validity for any other purpose is not involved. Price v. Hickok, 39 Vt. 292; National Bank v. Peabody, 55 Vt. 492; Pennoyer v. Neff, 95 U. S. 714; Cool. Con. Lim. 403; Sto. Conf. Laws, s. 592a.

The claim that the judgment should be set aside because of a defense arising since its rendition cannot be sustained. The money for which the trustee was adjudged chargeable was in no way litigated in the suit in New York. The only item recovered in the judgment sought to be set aside which entered into the New York judgment was the one hundred dollars cash paid. This was credited as cash received by the plaintiff in the New York suit, in his specification. The hearing and judgment upon it were subsequent to the judgment against him in this State. Thus he permitted the credit to stand after the item had been included in an adjudication of which he had notice. By so doing, he in effect voluntarily paid that portion of the judgment recovered here for which there was no security. This reduction of the claim upon which judgment was obtained in'New York does not entitle the plaintiff in that suit to deprive the other party of the prior judgment by virtue of which he holds the money attached here.

A claim is made that the judgment should be set aside because fraudulently obtained. We consider the matters to which our attention has been directed insufficient to sustain the claim.

Judgment affirmed.