205 A.D. 24 | N.Y. App. Div. | 1923
The action is to recover a broker’s commission on the sale of shares of stock. The defendant is a resident of the State of Connecticut. No warrant of attachment had been issued, nor is it sought to impress a lien upon any property within this State. The action is simply to recover a personal judgment for a sum of money only. The sole reason given for the granting of the order is that the defendant is a non-resident, of the State and cannot with due diligence be found therein.
It is well-settled law that a State, having within her territory property of a non-resident, may hold and appropriate it to satisfy the claims of her citizens against him; and her tribunals may inquire into his obligations to the extent necessary to control the disposition of that property. If he has no property within the State, there is nothing upon which her tribunals can adjudicate. Except in cases affecting the personal status of the plaintiff, and in those wherein that mode of service has been assented to in advance, the substituted service of process by publication, allowed by the statute of a State where actions are brought against nonresidents, is effectual only where, in connection with process against the person, property in the State is brought under the control of the court and is subjected to its jurisdiction, or where judgment is .sought as a means of reaching such property, or affecting some
The respondents contend that it is not now proper to set aside •the order of publication, since it may be made effective by a later discovery of property of defendant upon which a levy may be made; and this was the reason given by the learned justice at Special Term for his decision. In Helme v. Buckelew (229 N. Y. 363, 371) the court said: “ The argument is pressed that the res need not be here at the inception of the suit; if there is nothing here to-day, there may be something here to-morrow; an action at law will lie, it is said, to procure a judgment enforcible against any property that may be discovered in the future. * * * Such a construction would leave outstanding, as a difficulty still to be overcome, the point of constitutional power. If possession of the res is the foundation of jurisdiction, that possession must be acquired when jurisdiction is assumed [Riverside & D. River C. Mills v. Menefee, 237 U. S. 189; Bryan v. University Pub. Co., 112 N. Y. 382; Paget v. Stevens, 143 N. Y. 172; Holmes v. Bell, 139 App. Div. 455, 461; Chesley v. Morton, 9 App. Div. 461.]”
There must be property of the non-resident within the State at the time the court asserted its jurisdiction over the non-resident defendant, and that was at the time the order for substituted service was made. (Hodgens v. Columbia Trust Co., 185 App. Div. 555, 559; Freeman v. Alderson, 119 U. S. 185, 188; Logan v. Greenwich Trust Co., 144 App. Div. 372; affd., on opinion below, 203 N. Y. 611; German-American Coffee Co. v. Johnston, No. 1, 168 App. Div. 31, 35.) It is contended that the complaint shows a sufficient cause of action against the defendant, and, therefore, the case is within section 232 of the Civil Practice Act. This provision of the Civil Practice Act is a re-enactment of section' 439 of the Code of Civil Procedure without change of substance. It was held under the latter section: “ That condition stands in the place of the special cases enumerated in the former Code and can require nothing less, for, unless a cause of action arises within the State, or the defendant has property therein, and the court has jurisdiction over the subject of the action, neither the person nor property of a defendant could be affected by any judgment the court might render. lie could neither be punished for contempt in failing to obey its order, nor his estate be sold by reason of it.
The plaintiffs further rely upon the case of Del Piatta v. Mendoza (195 App. Div. 833). In that case, however, a warrant of attachment had been issued, and section 825 of the Civil Practice Act provides that "From the time of the granting of a provisional remedy, the court acquires jurisdiction and has control of all the subsequent proceedings. Nevertheless, jurisdiction thus acquired is conditional, and liable to be divested in a case where the jurisdiction of the court is made dependent by a special provision of law upon some act to be done after the granting of the provisional remedy.” And section 905 of the Civil Practice Act (formerly a portion of section 638 of the Code of Civil Procedure) provides: “ If the warrant be granted before the summons is served, personal service of the summons must be made upon the defendant against whose property the warrant is granted, within thirty days after the granting thereof; or else before the expiration of the same time, service of the summons by publication must be commenced, or service thereof must be made without the State, pursuant to an order obtained therefor * * *.” And section 493 of the Civil Practice Act provides that the court shall not render a judgment of default for a sum of money only, in those actions where an attachment is allowed, where the defendant is a non-resident and has not appeared, unless the plaintiff shall file proof that a warrant of attachment, granted in the action, has been levied upon the property of the defendant. (See, also, Rules Civ. Prac. rule 192; Civ. Prac. Act, § 902. ) The court, therefore, acquired a conditional jurisdiction, and sections 825 and 905 of the Civil Practice Act (supra) show that it was contemplated that granting of the warrant might be either
It is further urged that no judgment can be entered until property has been attached, and, therefore, the defendant is not required to appear prior to the time that an attachment was levied upon his property. This argument is sufficiently answered when we consider- that jurisdiction is the power to hear and determine the controversy. If the court cannot enter judgment, “ the impropriety of issuing an order which, if it leads to a judgment, ‘ would operate on nothing in the State and be regarded by nobody out of it,’ becomes apparent. It offends every principle by which the jurisdiction of a court can be- vindicated, and should not be allowed to stand.” (Bryan v. University Pub. Co. of N. Y., supra, 388.)
Of course the defendant could ignore the service, but he was not required to. He is entitled to move to vacate the order and set aside the service, and whenever the jurisdiction df the court is questioned, it should be determined.
The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Clarke, P. J., and Merrell, J., concur; Dowling, J., dissents.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.