26 Del. 227 | Del. Super. Ct. | 1912
delivering the opinion of the court:
This is an action upon a contract made between the plaintiff and defendant, whereby the plaintiff trading as a machine com
To this count of the declaration the defendant replied specially, by reciting the statutes of the State of Tennessee relating to process and judgments in foreign attachment, and averring that in pursuance therewith, it instituted an action by foreign attachment in a court of competent jurisdiction in that state against the plaintiff in this action, trading as the machine company, upon the same agreement here declared upon and concerning the same machine here in controversy, to recover the portion of the purchase price it had paid for the machifie and damages it had otherwise sustained because of an alleged breach of the machine company’s warranty as to the capacity of the machine; that the process in that action was executed by attaching the machine and giving notice thereof by publication in the manner required by the law of Tennessee, and that thereafter the court proceeded to judgment and sale of the machine attached.
Further averring, that upon the legal execution of the process issued in the foreign attachment proceeding in Tennessee, the court in Tennessee fully acquired jurisdiction of both the property attached and of the person trading as the machine company, there made defendant, and that the judgment there rendered was final and conclusive against him of all matters there considered and determined; and that one of the matters considered and finally determined by the judgment in that action against the defendant was that the defendant machine company had not furnished and delivered to the oil company, the machine in accordance with the terms of the agreement, and it being so adjudged, the defendant oil company, for a defense in this action, here prays judgment by its plea, if the plaintiff in this action,
To this plea the plaintiff trading as the machine company, demurred generally.
From the record of the Tennessee case it appears that the defendant in the action there instituted, trading as the machine company, was a nonresident of the state of Tennessee, that the form of the action was assumpsit and the nature of the process foreign attachment, and that the proceeding was begun by attachment of the property and notice by publication of the pendency of the action, and was determined without personal service upon, appearance entered or defense made by the defendant.
The oil company admits that the money feature of the judgment which it recovered in Tennessee against the plaintiff, trading as the machine company, is not here nor anywhere binding upon him and would not constitute the foundation of an action in debt or a defense by way of set-off in another action instituted elsewhere, but it contends and therefore pleads that the delivery of the machine was an issue before the Tennessee court of which it had jurisdiction to make a conclusive decision, that by its deliberate judgment it decided that issue against the defendant trading as the machine company and when that defendant in the Tennessee action became the plaintiff in this action in Delaware and sought to recover for the delivery of the machine which the court in Tennessee decided he had not delivered, he is here bound and estopped by the judgment against him in Tennessee so far as it relates to the issue of delivery there submitted and determined. In the abstract, therefore, the question presented is whether a judgment of a court of one state, rendered in an action of foreign attachment against a nonresident upon constructive service only, is such a final and conclusive adjudication of the questions involved (as distinguished from the disposition of the property attached)
[1-3] The rule is unquestioned that when a court has jurisdiction of the subject-matter of a suit and of the parties to it, its judgment upon the merits of the controversy is conclusive between the parties upon every question of fact directly in issue and determined in the action, and that to such a judgment, whether declared upon as a cause of action or pleaded as a defense, the courts of all the states are bound to give full faith and credit. Equally unquestioned at one time was the rule that when the jurisdiction of a court appeared by its record, it was likewise conclusive upon the parties, and the defendant could not plead against it that the court had not acquired jurisdiction of him (Pritchett v. Clark, 3 Harr. 241,517; Ibid, 4 Harr. 280; Ibid, 5 Harr. 63); but whatever may at one time have been the impression to the contrary, it is now well and definitely settled, that .to render a judgment recovered in the courts of one state final and conclusive in the courts of another state, under the provision of the Constitution of the United States, the court in which the judgment was recovered must in fact have had jurisdiction of the subject-matter of the suit, or of the cause of action, and of the parties to it, and particularly of the defendant; and when it assumes the character of an action or proceeding in rem, that it had jurisdiction of the res or the thing itself; for it has been broadly and distinctly ruled, by the unanimous opinion of the Supreme Court of the United States, that neither the full faith and credit provision of the Constitution nor the act of Congress passed in pursuance thereof, prevents any inquiry into the jurisdiction of the court by which a judgment offered or. to be offered in evidence was rendered (Mitchell, Vance & Company v. Ferris & Company, 5 Houst. 34; Caldwell v. Armour & Company, 1 Penn. 545, 43 Atl. 517; Earthman's Adm’r v. Jones, 2 Yerg. [Tenn] 484; Thompson v. Whitman, 18 Wall. 457, 21 L. Ed. 897; Knowles v. Logansport, G. & C. Co., 19 Wall. 58, 22 L. Ed. 70; Pennoyer v. Neff, 96 U. S. 714, 24 L. Ed. 565; Wilson v. Seligman, 144 U. S. 41, 12 Sup. Ct. 541, 36 L. Ed. 338; St. Clair v. Cox, 106 U. S. 350, 1 Sup. Ct. 354, 27 L. Ed. 222; Empire v. Darlington, 101 U. S. 87, 92, 25 L. Ed. 878; Rubber Co.
[4-6] The action in Tennessee was an action in the nature of an action in rem, instituted by process of foreign attachment, which at its inception, seized the property of the nonresident defendant, trading as the machine company, found within that jurisdiction, and held it subject to the determination of the proceeding. The object of the process of foreign attachment in Tennessee, as it is generally under similar laws in other states, was to acquire jurisdiction of the person of the defendant, who because of his nonresidence could not be reached by personal service, by taking from him his property found within its jurisdiction and thereby compelling him to appear and submit himself to the jurisdiction of the court in order to protect or regain it, or in default of his appearance, to acquire jurisdiction of the res or thing attached, so that it might ultimately be appropriated to the satisfaction of the judgment that might be rendered against him. Blaney v. Randel, 3 Harr. 546; Reynolds v. Howell, 1 Marv. 52, 59, 60, 31 Atl. 875; Bellah v. Hilles, 2 Penn. 34, 43 Atl. 89; Wells v. Shreve's Adm’r, 2 Houst. 329; Geylin v. De Villeroi, 2 Houst. 203. Such an attachment of the defendant’s property without personal service upon him, as well as constructive service by publication, in such cases as the statutes of the states may provide, are held sufficient to enable courts of a state to subject property to their jurisdiction but insufficient as the foundation
[7] When a suit is founded upon such process and is not affected by the defendant’s subsequent appearance and the consequent change of its character from an action in rem to an action in personam with all the qualities and characteristics of a personal action begun by personal service (Wells v. Shreve's Adm’r, 2 Houst. 329, 370), and when it retains to the end its nature of an ex parte proceeding in rem, any judgment rendered therein is a judgment quasi in rem, and being an adjudication upon the status of the particular res of the action (2 Smith's Leading Cases, 430), amounts only to a judgment of condemnation against the thing attached.
Such a judgment, while final and conclusive as to the right, title and judicial disposition of the property attached (Melhop v. Doane, 31 Iowa, 397, 7 Am. Rep. 147; Woodruff v. Taylor, 20 Vt. 65; Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; Freeman v. Alderson, 119 U. S. 185, 7 Sup. Ct. 165, 30 L. Ed. 372; 2 Smith’s Leading Cases 430), is not personally binding upon the defendant, deprives him of none of his rights and leaves him in undisturbed possession of all of his property (save that attached and particularly subjected to the judgment), to be by him used or employed in any manner in which he could have lawfully used or employed them before the proceeding by attachment was begun (Earthman’s Adm’r v. Jones, 2 Yerg. [Tenn.] 484; Bliss v. Heasty, 61 Ill. 338; Fitch v. Huntington, 125 Wis. 204, 102 N. W. 1066).
The demurrer is sustained.