Balk v. Harris

• Decision Date: 24 May 1898
• Citation: 122 N.C. 64,30 S.E. 318
• Court: North Carolina Supreme Court
• Parties: BALK. v. HARRIS.

30 S.E. 318

122 N.C. 64

BALK.

v.HARRIS.

Supreme Court of North Carolina.

May 24, 1898.

Exemption Laws—Operation— Foreign Attachment—Jurisdiction—Voluntary Payment by Garnishee—Judgment—Collateral Attack.

1. Exemption laws of a state have no extraterritorial force.

2. An affidavit for attachment against a nonresident not personally served, which does not state that he has property within the state, confers no jurisdiction against him.

3. A judgment rendered without jurisdiction may be collaterally attacked.

4. H., while in Maryland, was summoned as garnishee, and judgment against him as garnishee was entered. He returned to North Carolina, where he and the debtor resided, and, as he claimed, there paid the money to prevent a seizure of his own property in Maryland; but he did not show that he had any goods in the latter state, or that execution was issued, or that he was under any obligation to appear or satisfy such judgment. Held a voluntary payment, which did not discharge his liability for the original debt.

Appeal from superior court, Beaufort county; Timberlake, Judge.

Action by B. Balk against Isaac H. Harris. The jury under instructions returned a verdict for defendant, and from a Judgment thereon plaintiff appealed. Error.

John H. Small, for appellant.

Chas. F. Warren, for appellee.

CLARK, J. The plaintiff and defendant resided in North Carolina, and the latter was indebted to the former in the sum of $180, for borrowed money, presumptively payable here. Harris, while on a visit to Baltimore, was served with notice of garnishment by Jacob Epstein, in a proceeding instituted by said Epstein against Balk in the superior court of Baltimore city. No service of the summons was made upon Balk. Harris testifies that he gave no bond to appear or pay the money, and employed no lawyer, though the record shows that counsel, assuming to appear for him, joined Epstein's counsel in asking that judgment be entered up. After his return home, hearing that judgment had been taken against him in Baltimore, no execution being issued, he paid the $180 to Epstein's lawyer here, to be remitted to Baltimore.

In this action the plaintiff excepted on the ground that, (1) the court in Baltimore not having acquired jurisdiction against him by service of process or attachment of property, the garnishment against Harris was a nullity; (2) that Harris, having paid voluntarily and not under compulsion, was not discharged from his liability to the plaintiff; (3) that the money loaned defendant was proceeds of sale of his personal property exemptions; (4) that the court here erred in admitting as evidence the printed volume purporting to be the Public General Laws of Maryland, and to be published by authority of the said state.

The last exception cannot be sustained, for Code, § 1338, makes such book, purporting to be published by the authority of another state, evidence of its statute law. Copeland v. Collins (at this term) 30 S. E. 315.

The third exception has no force, for our exemption laws can have no extraterritorial force. Railroad Co. v. Maggard, 6 Colo. App. 85, 39 Pac. 985; Story, Conn. Laws, § 539. They are merely exemptions from executions issued by the courts of this state, and, by virtue of congressional enactment, are also protected as to executions issued by the United States court in this state.

But, as to the first two exceptions: In the proceedings instituted by Epstein in the superior court of...