Fitzsimmons v. Johnson

• Decision Date: 20 July 1891
• Citation: 17 S.W. 100,90 Tenn. 416
• Parties: Fitzsimmons et al. v. Johnson et al.
• Court: Tennessee Supreme Court

17 S.W. 100

90 Tenn. 416

Fitzsimmons et al. v. Johnson et al.

Supreme Court of Tennessee.

July 20, 1891

Appeal from chancery court, Shelby county; B. M. Estes, Chancellor.

Action by Mary A. Fitzsimmons and others against John Johnson executor, and others, to enforce a judgment rendered in Ohio and for other relief. Judgment for plaintiffs. Both parties appeal. Reversed in part, affirmed in part.

Caldwell J.

John W Todd died, testate, at his residence in Clermont county, Ohio, in the early part of the year 1864. He nominated his friends John Johnson and C. W. Goyer, of Memphis, Tenn., as executors of his will. They accepted the trust, went to Ohio, and on the 27th of April, 1864, were duly qualified by the probate court of Clermont county as executors of the will. On the 6th of November, 1865, the executors made what purported to be a final settlement of the estate of their testator, showing that they had received assets to the amount of $63,495.25, and that of this they had paid to the widow of the testator, as sole distributee, $61,040.10, and that the other $2,455.15 had been used in the payment of debts and expenses of administration. This settlement was made in the probate court of Clermont county, Ohio, on whose record the following entry was made: "This day the court examined the accounts and vouchers of C. W. Goyer and John Johnson, executors of the estate of John W. Todd, deceased, and found the same to be in all things correct; that they have been regularly advertised for exceptions, and, none having been filed thereto, the same are hereby approved and confirmed. And the court finds that said executors have paid all just claims against said estate, and have distributed the remainder according to the will of the testator. And the said accounts are ordered to be recorded, and the executors are discharged." The testator left no children or representatives of children. By the first 10 clauses of his will he expressed certain desires, which need not be mentioned in this opinion, and made provision for his widow; and by the eleventh clause he devised and bequeathed the residuum of his estate, both real and personal, to his four sisters and one brother. The provision made for the widow proved unsatisfactory to her; hence she failed to accept it. And her non-acceptance had the same legal effect, under the Ohio law, that an affirmative dissent has under our law. She had the same claims upon her husband's estate as she would have if he had died intestate. The executors assumed that she was entitled to the whole of his personal estate after the payment of debts and expenses, and upon that assumption they paid her the $61,040.10. Such had been the statute law of Ohio, but it was changed so as to allow the widow only one-third of her husband's net personal estate, a few years before the final settlement.

On the 15th of January, 1887, Mary A. Fitzsimmons, one of the residuary legatees, filed her petition in error, in the court of common pleas of Clermont county, Ohio, for the purpose of having the judgment of the probate court reviewed and reversed. Goyer having died in the meantime, Johnson alone, as surviving executor, was made defendant to this petition. The petition was accompanied with an affidavit that Johnson was a non-resident of the state of Ohio, and could not, therefore, be personally served with summons; that he had no attorney of record in the state; and that it was a proper case for publication. Thereupon publication was made for Johnson, as a non-resident, requiring him to appear and plead to the petition; and a copy of a newspaper, containing the published notice, was sent to him at his residence in Memphis, Tenn. Johnson made default, and on the 20th of January, 1888, the petition in error was heard in the court of common pleas, and the judgment of the probate court was reversed and set aside, and the cause was remanded to the probate court for further proceedings. After the remand Mrs. Fitzsimmons and Mrs. Young, another of the residuary legatees, appeared in the probate court, and filed exceptions to the accounts of Goyer and Johnson which had been confirmed by that court in 1865. These exceptions were set for hearing, and a copy thereof, together with a notice of the time and place of hearing the same by the court, was mailed to Johnson at Memphis. Johnson again failed to appear. The exceptions were sustained; and on the 2d day of February, 1888, the probate court adjudged that the executors had been improperly credited in the former settlement with the $61,040.10 paid the widow, and that they had received $30,000 besides, which they had not reported or accounted for in any way. The court further adjudged that these two sums, together with interest thereon,-in all $130,640,-remained, or should be, in the hands of the executors for distribution; and it was ordered that Johnson, as surviving executor, proceed to distribute said sum of $130,640 according to the will of John W. Todd, deceased, and according to law. That judgment is the principal ground of the present action. On the 28th of March, 1888, Mrs. Fitzsimmons and the other four residuary legatees, by themselves and their representatives, filed this bill in the chancery court at Memphis, to recover from Johnson, as surviving executor, and from the estate of Goyer, the deceased executor, the said $130,640, and other sums alleged to have been received by the same persons as executors of John W. Todd's estate in Tennessee. The chancellor dismissed the bill, on demurrer, so far as relief was sought on the Ohio record, but retained it for other purposes, to be hereafter stated. After final decree on the merits of the other branch of the cause, both complainants and defendants appealed to this court. All material questions raised in the chancery court are presented here by assignments of error.

Was that part of the bill seeking relief on the judgment of the probate court in Ohio properly dismissed? The main ground of demurrer to that part of the bill was want of jurisdiction in that court to pronounce the judgment. The question of the court's jurisdiction of the subject-matter need not be discussed or elaborated; for by the statute of Ohio her probate courts are given general jurisdiction to settle the accounts of executors and administrators, and to direct distribution of balance found in their hands. Jurisdiction of the subject-matter was therefore ample and complete. Rev. St. Ohio, § 524.

Whether the court had jurisdiction of the person of Johnson is not so easily answered. It is conceded in the bill, and recited on the face of the record, that Goyer was dead, and that Johnson, the surviving executor, was not personally served with notice, either of the appellate proceedings in the court of common pleas, or of the subsequent proceedings in the probate court, which resulted in the judgment sued on; and that being a non-resident, and without an attorney of record in the state, only publication was made for him. It is now well settled that a personal judgment against a non-resident rendered in an original suit upon constructive notice,-that is, upon notice by publication merely,-is an absolute nullity, and of no effect whatever. Though a state may adopt any rules of practice and legal procedure she may deem best as to her own citizens, she can adopt none that will give her courts jurisdiction of non-residents so as to authorize personal judgments against them without personal service of process upon them. By personal judgments we mean judgments in personam, as for payment of money, in contradistinction from judgments in rem, whereby the property of non-residents, situated within the territorial limits of the state, may be impounded; for when non-residents own property in a particular state it is subject to the laws of that state, and may be attached or otherwise brought into custodia legis as security for the debts of the owners, and actually sold and applied by direction of the court, without personal service, and by constructive notice merely. Pennoyer v. Neff, 95 U.S. 714. The judgment before us is, confessedly, a personal judgment; hence, if the appellate proceedings in the court of common pleas, and the subsequent proceedings in the probate court, were original proceedings, standing upon the same ground with respect to notice as an original action, that judgment is void for want of jurisdiction of the person. The demurrer assumed, and in sustaining it the chancellor held, that the petition in error by which the cause was removed from the probate court to the court of common pleas was, in effect, an original action, and that it could be prosecuted only on notice by personal service; and that, it appearing that no such notice was given, the judgment sued upon was null and void. We do not concur in the view that the petition in error was a new suit, or that, to entitle petitioner to prosecute the same, she must have given the defendant therein the same notice required in the commencement of an original action. In saying this we are not unmindful of the fact that many of the authorities speak of a writ of error, whose office seems to be the same in most of the states as the petition in error under the Ohio law, as a new suit. Such is the language of some of the earlier decisions in Ohio. Taylor v. Boyd, 3 Ohio, 337. In some of the cases in our own state a writ of error has been called a new suit, (Cain v. Cocke, 1 Lea, 290; Wooldridge v. Boyd, 13 Lea, 151;) in others it is said to be in the nature of a new suit, ( Mowry v. Davenport, 6 Lea, 83; Ridgely v. Bennett, 13 Lea, 206;) and in still another the court says it is to be regarded as a new suit, (Spurgin v. Spurgin, 3 Head, 25.) But in no case that we have been able to find, or to which our attention...