93 N.J. Eq. 109 | New York Court of Chancery | 1921
The bill of the complainant bank sets up that in .1914 the two defendants opened a deposit account udth it in the names of both; that the amount to their credit is now $402.61; that the two defendants are separated and each has demanded of the bank the pajnnent of the entire bank credit; that complainant is willing and anxious to pay the amount to whomsoever is entitled, but cannot determine to whom the same should rightfully be paid; offers to pajr the sum into court, and prays a decree of interpleader and discharge of complainant from further liability.
The defendant husband was personally served with process. The defendant wife could not.be served, she having gone to Itaty, and an order of publication was made against her and due proof made of publication and mailing under its terms.
On June 5th, 1920, after the expiration of the time for answering limited in the order of publication, an order or decree entitled an “interlocutory decree” was entered on complainant’s motion, on default of answer bjr either defendant. Subsequently, the defendant husband filed a statement of his claim to the sum in question, pursuant to chancery rule. 69,'and the'cause was thereafter referred for hearing.
Tt must be clear, upon consideration, that the decree of June 5th, 1920, was improvidently entered. The suit is in personam, not in rem. The subject-matter is not a trust fund, but a debt due on contract from the bank to one or other, or both defendants. Complainant is not concerned with the definite ultimate
The so-called .“interlocutory decree” of June 5th, 1920, is interlocutory in its nature only as between defendants. As between complainant and defendants it is a final decree, for it adjudicates complainant’s right to bring the suit and to have the relief sought; it discharges complainant of all liability to defendants, or either of them (and incidentally awards costs and a counsel fee to complainant out of the sum, which had been paid in to the clerk in chancery), and decrees the defendants to interplead and determine in this suit, in the further progress thereof, their conflicting claims to the sum in question.
Such a final decree in personam, however, cannot validly be made by this court, when jurisdiction has not been acquired over the person of one of the defendant claimants, and such’ jurisdiction is not acquired as to an absent defendant, who does not appear, by publication proceedings. Lynde v. Lynde, 54 N. J. Eq. 473; Hervey v. Hervey, 56 N. J. Eq. 424; McGuinness v. McGuinness. 72 N. J. Eq. 381. The decree is therefore void.
This is not a case where the record shows that jurisdiction has been acquired over the defendant, when, in fact, it has not been so acquired. Here it is clearly apparent on the face of the record that there was no service of the usual process and no voluntary appearance, either prior or subsequent to the publication proceedings; which publication proceedings might conceivably have resulted in defendant’s submission to the jurisdiction of the court (though they could not compel such result), and, hence, were proper to be taken. It being evident that the decree could not be valid, it should not have been entered; and, it now coming to the attention of the court, counsel for complainant and the defendant actually served were directed to show cause why the decree should not be set aside. No such cause was of
