Battle, Heck & Co. v. Carter

• Decision Date: 01 January 1876
• Parties: BATTLE, HECK & CO. v. G. W. CARTER ET AL.
• Court: Texas Supreme Court

44 Tex. 485

BATTLE, HECK & CO.

v.G. W. CARTER ET AL.

Supreme Court of Texas.

1876.

APPEAL from Harris. Tried below before the Hon. James Masterson.

Gustave Cook, for appellants.

F. Fauntleroy, for appellees.

MOORE, ASSOCIATE JUSTICE.

The only question in this case is whether a suit can be maintained in the courts of this State by a citizen of another State against non-residents for the collection of a debt by foreclosure of a mortgage given to secure payment on land in this State when the defendants are cited by publication merely, and without attaching said land or other property of the defendants.

It is a universally admitted principle of international law that a judgment against a non-resident without personal service, unless the proceeding is in rem, is entitled to no consideration beyond the jurisdiction in which it is rendered. And for this reason it has always been held when the plaintiff and defendant are both non-residents, and the proceeding is not in rem, as by attachment or otherwise, and when neither the person nor property of the defendant is within the State, and the citation can be served upon the defendant by publication merely, our courts will not entertain jurisdiction of the case. While they are as open to citizens of other countries as freely as to our own for the proper vindication of their rights, it has never been deemed appropriate for them to determine “issues sent from any part of the world,” and where their judgment could have no probable effect upon the rights of the parties “except on the contingency of the defendants afterwards introducing property within the jurisdiction of the court.” When, therefore, the action is to enforce payment of a debt, it has been uniformly held, unless property or credits have been brought within the jurisdiction of the court or subject to its control by attachment, the court will refuse to entertain jurisdiction of it. (Ward v. Lathrop, 4 Tex., 180; Same case, 11 Tex., 290;Wright v. Ragland, 18 Tex., 289;Haggerty v. Ward, 25 Tex., 144;Hays v. Barrera, 26 Tex., 81.)

But the principle running through all these cases is that, the demand upon which the action is founded being merely personal, the judgment must be of a like character, unless by attachment or otherwise property is brought within the jurisdiction of the court, which can be subjected to the judgment. And not that an attachment must issue if the subject-matter of the suit is otherwise within its jurisdiction or control. These cases show, if the parties are non-residents, it must appear that there is nevertheless a subject of litigation on or through which the judgment of the court can be carried into effect. It by no means follows, if there is a subject of litigation within the jurisdiction of the court, that it must be seized, and...