39 S.C. 484 | S.C. | 1893
The opinion of the court was delivered by
These two cases were origi
In the .Tillinghast case, it appears that on the 7th of May, 1892, the plaintiff issued a summons against the two companies named as defendants .herein, calling on them to answer the complaint dated and, we suppose, filed on the same day. In that complaint, the plaintiff alleges that he is au attorney at law, practicing'in the courts of this State; that as such he had previously instituted an action in the name of one W. It. Smith agaiust the Boston and Port Boyal Lumber Company, alleging insolvency of said company, waste of assets, and asking that a receiver be appointed to take charge of said company’s property for the protection of the rights of creditors and shareholders of said company; that he applied for and obtained an order for the appointment of a temporary receiver, who took charge of said assets; that prior to the day agreed upon for the hearing of the motion for the appointment of a permanent receiver, all the parties interested, either as shareholders or creditors of said Boston and Port Boyal Lumber Company, met in the city of Boston, and settled their conflicting claims and interests; that as soon as the said adjustment was made, all parties being desirous that the proceedings.for the appointment of a receiver should be discontinued, a telegram was sent by the S. C. Forsaith Machine Company, one of the defendants in the receiver case, that they would be responsible for the expenses of said case, which expenses included plaintiff’s fee in said case, which expenses were to be ascertained by a reference; that on receipt of said telegram, an agreement, in writing, was entered into between the plaintiff herein, the said W. B. Smith, plaintiff in the receiver case, and E. F. Warren, Esq., attorney
The following is a copy of the telegram referred to in the complaint: “Boston, Mass., April 9, 1892. To B. F. Warren, Hampton, S. C.: Discontinue all suits against lumber company and get the matter out of court, and we will be responsible for cost, to be ascertained by reference, as the lumber company will resume business. S. C. Forsaith Machine Company, Manchester, N. H.” And the following is a copy of the agreement entered into after receipt of said telegram:
“The State oe South Carolina, County of Hampton. | In Common Pleas.
“W. B. Smith, plaintiff, v. The Boston and Port Boyal Lumber Co. Whereas all parties interested in above case have agreed to a settlement’ thereof; and whereas the S. 0. Forsaith Machine Company, of Manchester, N. H., has agreed to pay W. S. Tillinghast, plaintiff’s attorney, his fee herein (it being*488 conceded by all parties hereto that such fee is to be paid, under the law, out of the general assets of the Boston and Port Boyal Lumber Company), such fee to be ascertained by a reference; and whereas it is agreed that the Boston and Port Boyal Lumber Company will protect W. B. Smith in his interest as the same may appear. In consideration of the foregoing, the above entitled cause is to be withdrawn. It is further agreed that said reference to ascertain the amounts of said fees and costs will be held within next week before if said fees and costs cannot be adjusted without such reference. (Signed) W. S. Tillinghast, plaintiff’s attorney. E. F. Warren, defendant’s attorney. W. B. Smith.”
On the 5th of July, 1892, upon the usual affidavit of the plaintiff, an order of publication was granted by the clerk of the Court of Common Pleas for Hampton County, S. C., requiring publication to be made in the Manchester Daily Mirror, a newspaper published in the city of Manchester, State of New Hampshire, once a week for six successive weeks, and that a copy of the summons and complaint be forthwith deposited in the post office in Hampton, addressed to the S. C. Forsaith Machine Company, Manchester, N. H. Such communication appears to have been sent by registered letter on the 8th of July, 1892; but it does not appear that any publication was ever made; the plaintiff relying upon service of the defendant company, in New Hampshire, in lieu thereof, as appears by the affidavit (a copy of which is set out in the “Case”) of one Daniel T. Healey, sheriff of the county in which the city of Manchester is located, made before one Thomas D. Luce, styling himself “Clerk Supreme Court” of said county, and certified to by him under his “hand and official seal,” though no copy of such seal is affixed. It may be as well to state here that the action was dismissed as to the Boston and Port Boyal Lumber Company, upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and there being no appeal from the order entered to that effect, the case should now be considered as an action against the S. C. Forsaith Machine Company alone.
Upon the papers above set forth and referred to, a motion
From this order plaintiff appeals upon the three grounds set out in the record, which make substantially three questions: 1st. Was there error in holding that the cause of action did not arise in this State? 2d. Was there error in holding that the breach of the contract constituted the cause of action? 3d. Was there error in holding that, even if the cause of action arose in this State, the courts of this State could not take jurisdiction of an action in personam and render a personal judgment against a party served with the summons outside of the limits of this State?
The third question presented by the grounds of appeal is more difficult and is much more important than either of the other questions. The Code provides in section 148, that “civil
This question, as it seems to us, has been conclusively settled in the negative by the highest authority in the case of Pennoyer v. Neff, 95 U. S., 714. In that case, Neff, being a non-resident of the State of Oregon, but owning property therein, the land in question, was sued on a money demand, in which action the State Court of Oregon undertook to acquire jurisdiction of the person of Neff by publication, under a statute of that State practically identical with our Code in this respect, and rendered judgment against him for the amount of such demand, and under the executions issued to enforce such judgment, the land was sold by the sheriff and bought by Pennoyer. Subsequently, an action was brought by Neff against Pennoyer, to recover possession of the land, in the Circuit Court of the United States for the District of Oregon, and carried thence by writ of error to the Supreme Court of the United States. The case turned upon the validity of the sale by the sheriff, or rather the validity of the judgment under which such sale was made, and the court held that the State Court of Oregon could not acquire jurisdiction of the person of a non-resident defendant in a personal action simply by service by publication, and hence that the judgment was a nullity. As is said by Mr. Jus
This doctrine does not deny or interfere with the right of a State to acquire jurisdiction over the property of a non-resident located or found within such State by a proceeding in rem, for example, by attachment, or some proceeding in the nature of a proceeding in rem, provided for by the laws of such State; but under such a proceeding, no personal judgment can be rendered against the non-resident, and the judgment can only affect him so far as his property found in the State is concerned. See Stanley v. Stanley, 35 S. C., 94. The same doctrine had been previously laid down in Galpin v. Page, 18 Wall., at pages 367-8, where it is said: “Even the Court of King’s Bench in England, though a court of general jurisdiction, never imagined that it could serve process in Scotland, Ireland or the colonies to compel an appearance, or justify a judgment against persons residing therein at the time of the commencement of the suit.” The case of Pennoyer v. Neff has not only been recognized and followed in numerous subsequent cases, but, so far as we are informed, has never been questioned by any tribunal. Even the learned judge, Mr. Justice Hunt, who dissented in that case, did not question the doctrine for which we have cited the case, but based his dissent upon the sole ground that, inasmuch as Neff owned land within the State of Oregon at the time the action was commenced, in which the judgment in question was recovered, it could be subjected to such judgment even though no proceeding by attachment had been instituted.
It is apparent from what is said in other cases that the Supreme Court of the United States recognize no difference in the two modes of service, so far as the question we are considering is concerned. For in Grover, &c., Machine Company v. Radcliffe, 137 U. S., at pages 294-5, it is said, upon the authority of Pennoyer v. Neff, and other cases there cited, “that a personal judgment is without validity if rendered by a State Court, in an action upon a money demand against a non-resident of the State, upon whom no personal service of process within the State was made, and who did not appear.” And in Wilson v. Seligman, 144 U. S., at pages 44-5, the following passages from the opinion in Pennoyer v. Neff are quoted with approval: “Every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory * * * no State can exercise direct jurisdiction and authority over per
This being a purely personal action, in which no warrant of attachment has been, or could be, obtained, inasmuch as the defendant has no property within this State, we think that the court never acquired jurisdiction of the defendant corporation, by service of the summons out of the State, and hence there was no error on the part of the Circuit Judge in dismissing the complaint for want of jurisdiction.