55 Vt. 492 | Vt. | 1883
The opinion of the court was delivered by
The demurrer to the replication raises the question whether the plaintiff, a national bank located in Yermont, having recovered judgment by default against the defendants, one then and still a resident of Yermont and the other of Louisiana, in a court of New Hampshire, upon the same cause of action upon which the present suit was brought, can maintain this action here, no personal service of the process in the New Hampshire case having been made on the defendants and they not having appeared iri the suit, but that suit having been commenced by attachment of real estate of the defendants situated in New Hampshire, and constructive notice given by publication according to the laws of New Hampshire. There is high authority for holding that if the defendants had been residents of New Hampshire, but temporarily absent from the state, which occasioned the lack of personal service, they would have been upon principles of international law subject to the laws and the jurisdiction of the courts of that state ; therefore the plaintiff would also be bound by the New Hampshire judgment. Henderson v. Staniford, 105 Mass. 504. In Freeman on Judgments, s. 570, (3 Ed.,) the rule is thus stated: “ The position, however, which seems to be best sustained, both by reason and by precedents, is that each state has the authority to provide the means by which its own citizens may be brought before its courts; that the courts of other states have no authority to disregard the means thus provided; and finally that every judgment
But it is claimed in behalf of the defendants that as they do not here object to the New Hampshire judgment, the plaintiff is bound by it; that it was voidable only, not void. The soundness of this claim depends upon the scope and effect of the New Hampshire proceedings. The service in that action was sufficient so far as the action was in the nature of a proceeding in rem. That is, the judgment was effectual to enable the court to reach the property attached and have it applied in satisfaction so far as it went. The amount not being sufficient to satisfy the whole judgment gave occasion for further remedy byTETs action in Yermont. If the publication of notice had not been preceded by* an ‘attachment, the New Hampshire judgment would have been void as a judgment in personam, though the statutes of New Hampshire had provided for notice in this way. This was held in the case of Pennoyer v. Neff, 95 U. S. 714, a leading case where the whole subject of the effect of constructive notice is ably discussed. If the New Hampshire judgment was absolutely void as a personal judgment, then the plaintiff properly disregarded it in bringing this additional action. Treating the case of Pennoyer v. Neff, supra, as controling where the notice is by publication without attachment of property, then the only question left is whether the attachment added anything to the personal character of the judgment. This question seems to be well answered by Mr. Justice Miller in Cooper v. Reynolds, 10 Wallace, 308, where, in discussing the character and effect of the proceeding where there had been an attachment of property of an absent defendant and publication of notice, followed by a judgment by default, he says : “ If the defendant appears, .the cause becomes mainly a suit in personam, with the added incident that the property’ attached remains liable, under the control of the court, to answer to any demand which may be
. In the case of Pennoyer v. Neff, Mr. Justice Field says this doctrine received the approval of all the judges, and after citing and discussing many cases, he adds: “ In all the cases brought in the state and federal courts where attempts have been made under the act of Congress to give effect in one state to personal judgment rendered in another state against non-residents, without service upon them, or upon substituted service by publication, or in some other form, it has been held without an exception, so far as we are aware, that such judgments were without any binding force except as to property, or interests in property, within the state, to reach and effect which was the object of the action in which the judgment was rendered, and which property was brought under the control of the court in connection with the process against the person. The proceeding in such cases, though in the form of a personal action, has been uniformly treated, where service was not obtained and the party did not voluntarily appear,
This case has been followed by others in the federal courts to the same effect. See Brooklyn v. Insurance Co., 99 U. S. 370; Empire v. Darlington, 101 U. S. 92; St. Clair v. Cox, 106 U. S. 350. To the same purport was the holding in Bissell v. Briggs, 9 Mass. * 469. Parsons, Ch. J., says : “ If however these goods, effects and Credits are insufficient to satisfy the judgment, and the creditors should sue an action on that judgment in this state to obtain satisfaction, he must fail; because the defendant was not personally amenable to the jurisdiction of the court rendering the judgment.” Similar citations could be made from our own reports and from those of other states, but the federal cases are recent and cover the ground. We do not overlook that the precise question involved in the above cases was mainly as to the rights of the defendants as effected by such judgments ; but the discussion also involved the general character and effect of the proceedings. The case of McGilvray v. Avery, 30 Vt. 528, most relied on by defendants, was distinguished from this by the fact that the New Hampshire court there had jurisdiction over the defendant as well as the subject matter of the action. The point here is whether the New Hampshire judgment, as a personal judgment, was void or only voidable. The ground upon which it would be pronounced voidable would be that the court never obtained jurisdiction over the persons of the defendants; but this would make the judgment void. The judgment was rendered by reason of jurisdiction over property of the defendants. In its operation and effect upon that it was neither void nor voidable. Beyond that it was either valid or invalid, independent of the choice of either party. It was not erroneous. There was no error in it. The proceeding was regular. The court had the
The case of Rangely v. Webster, 11 N. H. 299, was similar to this in the facts and question involved, and the same conclusion was reached. In a well stated-opinion the court say: “To maintain the position that in the case of an action upon the judgment, the judgment is void, and may be so treated, but that when the action is upon the original demand the same judgment is valid, is to maintain that the form and manner of the action adopted determine the character of the former judgment, its validity, or invalidity, instead of the facts and circumstances attending its recovery.” Whittier v. Wendall, 7 N. H. 257; Downer v. Shaw, 22 Ib. 282 ; Wright v. Boynton, 37 Ib. 9; Bank v. Butman, 29 Me. 19 ; Kane v. Cook, 8 Cal. 449; Bigelow Estoppel, 240, 251.
Taft, J., dissents. Judgment affirmed.