Lead Opinion
The fourteenth amendment of the constitution of the United States, § 1, says: “Nor shall any state ■deprive any person of life, liberty, or property without due process of law.” What constitutes due process of law is a question that has been frequently discussed. It “requires an orderly proceeding, adapted to the nature of the •case, in which the citizen has an opportunity to be heard, and to defend, enforce, and protect his rights. A hearing or an opportunity to be heard is absolutely essential. We cannot conceive of due process of law without this.” Stuart v. Palmer, 74 N. Y. 184; Insurance Co. v. Needles, 113 U. S. 576, 5 Sup. Ct. Rep. 681; Ferguson v. Crawford, 70 N. Y. 256; Starbuck v. Murray, 5 Wend. 157. In Davidson v. New Orleans, 96 U. S. 105, in describing “due process of law,” the court says: “Due advertisement made as to those [owners] who were unknown or could not be found.” It seems hardly necessary to argue that a judgment which deprives a man of his property cannot lawfully be recovered without notice to him. We do not mean that against absent debtors the law may not authorize an attachment of the alleged debtor’s property. It may thereby acquire jurisdiction of the thing. But, in order to make that jurisdiction perfect, it must give due notice to the owner before it attempts to divest his title. The attachment of the property is only one step. Another, and equally important, step, is the notice to the owner. Cooley, Const. Lim. 403; Buchanan v. Rucker, 9 East, 192; Fenton v. Garlick, 8 Johns. 194. Such is the rule in proceedings strictly in rem, to which what is known as foreign attachment is analogous. Now, while it is true that this notice to the owner need not be personal, as he is out of the state, yet it must be, as said in the quotation above, “adapted to the nature of the case. ” If it be said that it rests with the legislature of the state in which the attachment is issued to declare what shall be a sufficient notice, the answer is that that may be so, provided there be a reasonable and bona fide provision for giving notice. But certainly a legislature cannot enact that no notice need be given, or make that a notice which is no notice at all. To do that would be a fraud on the constitution. Now, in the present case, there was no notice whatever to Martin, and no attempt to give him notice. Process was issued and served on the
Even in proceedings strictly in rein, it is necessary, as above said, that the parties in interest have notice; “for the common justice of all nations requires that no condemnation should be pronounced before the party has an oppor
There is another very serious question: The contract of hiring was made in this state. The work was done in this state by a citizen of this state, and it was to be paid in this state. At least, there was evidence to show that it was to be paid here. The debt, therefore, was subject to the laws of this state, and the plaintiff had all the rights relative thereto given by the laws of this rstate. One of these rights was that these earnings for his personal services, rendered within 60 days, and necessary for the use of his family, should not be taken from him by legal proceedings against him or his debtor. Code Civil Proe. §§ 2463, 1879. Although these sections refer to proceedings taken in our own courts, yet they practically exempt such earnings from seizure by a creditor; and certainly, as long as the person who has earned those moneys remains in this state, he is entitled to have the benefit of this exemption. If the owner of tangible exempt property were to carry it into another state, it might be no longer protected by our laws; and so if a person, to whom were due moneys for services which were exempt by our laws, should go into an•other state, he might lose the benefit of this exemption. But Martin remained here, and his claim for earnings was protected by our laws. We see no reason why the railroad company might not, if they had chosen so to do, have insisted on this exemption as a ground why the attachment in Vermont reached nothing. Story says that the nature of the contract must be determined by the law of the country where it was entered into. Story, Confl. Law, §§ ■568, 569. In Williams v. Ingersoll, 89 N. Y. 508, a debt, claimed to be attached in Connecticut, had previously been assigned in this state by the person against whom the attachment was issued. The court at page 525 say he had nothing to be attached, and the attachment was a nullity; that is to say, "the court held that the transaction here of the person to whom the debt was ■due would be regarded by our courts, and should have been regarded by the court in Connecticut. By analogy, the exemption from any claim of creditors which Martin enjoyed here will be regarded by our courts. We may believe that it would have been regarded by the Vermont court if the railroad ■company had asserted it, as they should have done; for they should have known, and are chargeable with knowledge of, the law of the state where ■their contract with Martin was made, and where it was to be performed. In fact it appears by the ease that the attorney for Kelly in the justice’s court was also attorney for the railroad company; and it is easy, therefore, to understand why they did not assert this defense. It is difficult to have justice done when the same attorney appears for both parties in the litigation, and thus •enable both parties to combine to take property from a third person, who has not notice of the proceeding. Let us suppose that, before the proceedings in Vermont, Martin had assigned the claim to some third person, and that the railroad company had had notice of the assignment, would the proceeding in Vermont have deprived that third person of his claim ? We suppose not, under the ease last cited. Story, Confl. Law, § 592, and note 2. And when our laws impose on a debt of this kind an exemption for the claim of any creditor, which exemption is known to the party" who owes the debt, that exemption must be as effectual as an assignment would be to make an attachment in another state a nullity. As was said in Osgoed v. Maguire, 61 N. Y. 529, it would be carrying the rule of comity to an absurd length for our courts to give foreign creditors a better position in this respect than they do domestic
Ingalls, J., concurs.
Concurrence Opinion
Gray v. Canal Co., 5 Abb. N. C. 131, was in-every respect like the present case, except that the Delaware & Hudson Canal.Company was a Hew York corporation, doing business in Vermont, as well as in this state, and having, as required by the Vermont law, an agent in that state, upon whom legal process could be there served, whereas this defendant is a. Vermont corporation, doing business in this state as well as in Vermont, and having agents here upon whom.legal process can be served. This distinction,, however, is not material. In the case cited, full faith and credit were given to the judgment of the Vermont justice’s court. Assuming that the justice’s-court of Vermont had made the proper service of its process so as to acquire jurisdiction of the rem against the Hew York owner of it, it followed then, as-it follows now, that the courts of this state must give the same faith and credit—that is, the same effect—to the Vermont judgment that the courts of that state would give it. But it appears that the case of Towle v. Canal Co.,. reported in 57 Vt. 622, came before the supreme court of that state in 1878, upon appeal by the Delaware & Hudson Canal Company, in a case precisely like-Gray’s Case, cited above, except that the Hew York creditor of the company appeared in the justice’s court on the return-day of the writ. The supreme court, reversed the judgment of the court below. Ho opinion is reported. The report states: “ This case is published in this volume, [eight years after the decision,]! as it appears that similar suits are being brought. It was sent to the reporter by Royoe, C. J., on the request of Veazey, J.” We thus have the opinion-of the highest court of Vermont that such judgments upon trustee process-rendered in the inferior courts of that state, in favor of Hew York creditors who have no cause or excuse to leave their own forum, except the single one-that the Vermont laws give a right and remedy to creditors which the Hew York laws do not, will be reversed if appealed by the party charged as a trustee. This defendant, therefore, did not pay the judgment in Vermont, because it could not escape payment, but because it did not choose to resort to-the means open to it to escape it. In this case the subject-matter and the parties were all within this state, and it was fitting that their rights should be-adjudged by our courts, under our laws. One of the parties went to Vermont, and procured from an inferior court a judgment against the others, which apparently gave him a right unknown to our laws. We have every reason to-believe that the highest court of that state would, upon appeal, declare the-judgment unauthorized. In such a case, we do not think we are required, to-the prejudice of our citizens under our laws, to give any effect to the Vermont judgment. Concurring with the presiding justice, except that no opinion is expressed respecting the requirements of the Vermont statutes as to service-of trustee process upon non-residents of that state, I advise a reversal.