Bryan v. Univ. Pub, Co.

• Decision Date: 08 February 1889
• Citation: 112 N.Y. 382,19 N.E. 825
• Parties: BRYAN v. UNIVERSITY PUB, CO. et al.
• Court: New York Court of Appeals Court of Appeals

112 N.Y. 382

19 N.E. 825

BRYAN

v.UNIVERSITY PUB, CO. et al.¹

Court of Appeals of New York.

February 8, 1889.

Appeal from supreme court, general term, Second department.

Action by William J. Bryan against the University Publishing Company, Martha W. Wilkinson, and others. Mrs. Wilkinson moved to vacate an order for service of the summons upon her by publication. The motion was denied. The general term affirmed the order of the special term, and Mrs. Wilkinson appeals.

RUGER, C. J., and EARL and FINCH, JJ., dissent.

Payson Merrill, for appellant.

Samuel R. Taylor, for respondent.

DANFORTH, J.

The action is by a judgment creditor of Mrs. Richardson, against her as debtor, and other defendants, one of whom is Mrs. Wilkinson; and the order of publication recites that the action relates to personal property within the state in which the then defendant ‘have or claim the entire property or income, and that the relief demanded by the plaintiff consists partly in excluding the defendants from any lien upon or interest in it until the plaintiff's judgment is satisfied.’ This statement may bring the case in terms, but not in spirit, within subdivision 5, § 438, Code Civil Proc., but that is not necessary to consider; for neither the complaint nor the affidavits on which the order was founded contain any warrant for such assumption, and the order was sustained against the motion to vacate it upon the sole ground that the defendant was a non-resident of the state. The proceeding was a statutory one, and, to give the judge jurisdiction to entertain it, something more than the non-residence of the defendant must appear.

A summons is issued as the first step towards the commencement of an action; and this signifies in the Code, § 3333, an ordinary prosecution by one party against another party for the enforcement or protection of a right, or the redress or prevention of a wrong. The service of the summons is the commencement of the action. It can be made as of course upon a defendant within the state. It can be served upon a non-resident within the state, or by publication, only by direction of a judge; but his order must be founded not only upon an affidavit showing the non-residence, but also upon a verified complaint, showing a sufficient cause of action against the defendant to be served. Code Civil Proc. § 439. Under the former Code, § 135, it was enough to present the judge with an affidavit disclosing to him a cause of action against the defendant, and he was then authorized to make the order for publication in certain specified cases, and among others (1) ‘when the defendant is a foreign corporation, and has property within the state, or the cause of action arose therein; (2) where the defendant is not a resident of the state, but has property therein, and the court has jurisdiction of the subject of the action.’ These qualifying words are omitted in the Code of Civil Procedure, but that act, as is above stated, requires the complaint to show ‘a sufficient cause of action.’ 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. She could neither be punished for contempt in failing to obey its order, nor her estate be sold by reason of it. The jurisdiction of the court is limited to the boundaries of the state, and its process could not go beyond them.

The facts, therefore, constituting a valid claim against the defendant must be stated, and it must also appear that the case is one of which the court can take cognizance. Here nothing appears to be within its jurisdiction. So far as the appellant is concerned, the subject of the action is in Massachusetts. She is alleged to be the assignee of certain copyrights, an intangible species of property, as the name implies, (Stevens v. Gladding, 17 How. 450,) acquired by compliance with conditions imposed by statute, (Rev. St. U. S. §§ 4956, 4962), to be performed at the office of the librarian of congress, and imposed by statute, (Rev. St. U. S. §§ of printing, publishing, and selling books or other compositions,-a privilege abiding with the person by whom it was originally secured, or her assignee, (Rev. St U. S. §§ 4952, 4955, 4971.) She resides in Massachusetts, and for aught that appears always has resided there. Nothing has taken place in this state, and no one is here to be affected by any judgment the courts of the state can make. If the court directs the assignment to be canceled, how is its order to be made effective? or appoints a receiver, what power will he possess over the defendant,-appellant? or how require here to account for money received? Neither order could be enforced. Moreover, the complaint, while it shows the issuing of an execution against the debtor while a resident of this state, also shows that at some time thereafter, and before the issuing of the other execution alleged in the complaint, she left the state, and became, with her husband, ‘a resident of the state of Massachusetts, with the intent of defrauding and delaying the plaintiff in the collection of the said indebtedness,’ and still resides there. It then alleges the assignment of the copyright to Mrs. Wilkinson, with intent to defraud the plaintiff, and the collection of royalties by her, and payment of them to Mrs. Richardson, with like intent. The action is to reach the copyright, and have an accounting for those royalties as the property of Mrs. Richardson, and is within the Code which gives to the creditor an action against his debtor and any other person, to compel the discovery of any thing in action, or other property belonging to the judgment debtor, or held in trust for him. Code Civil Proc. § 1871. As the transaction sought to be undone is illegal, the action is founded on a wrong by Mrs. Wilkinson in receiving the property for an unlawful purpose, and to the plaintiff's injury, and for this he seeks a remedy. His right as a creditor to that property is the right he desires to enforce. It is plain that the right accrued, and therefore the cause of action arose, when and where the defendant was guilty of the wrong charged upon her, and that is when and where she stands as a shelter to the debtor, and claims and exercises rights of ownership under an instrument executed and received in fraud of the rights of a creditor. If the allegation in the complaint is true, that is the position, and that is the wrong practiced by the defendant. It is her duty to give up the property to be applied upon the debt, and the enforcement of that duty gives the cause of action. But these things did not happen in this state, nor are the interests or property her. The court can give no relief, and 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.

Clark v. Boreel, 21 Hun, 594, is cited by the respondent as opposed to these views. It seems to have no application. The action was for the recovery of damages for injuries to the person of a citizen, caused within this state by the negligence of the defendant. The court held that the cause of action arose in the state; that it had jurisdiction over it; that the defendant might perhaps appear, and thus jurisdiction of the person of the defendant be added to jurisdiction of the subject-matter; and in the then condition of the proceedings they regarded the motion as premature, and gave the plaintiff the benefit of the experiment. In the complaint before us no case is made giving jurisdiction to the courts of this state over the subject of the action or its cause, and the defendant is entitled to make the motion, rather than submit to the hardship of coming into them to defend the action.

The orders of the general and special terms are therefore reversed, and the motion to vacate the order of publication granted, with costs in all courts, and $10 costs of motion.

ANDREWS, PECKHAM, and GRAY, JJ., concur. EARL, J., reads for affirmance. RUGER, C. J., and FINCH, J., concur.

EARL, J., ( dissenting.)

Under the Code of Procedure, service of a summons by publication could be made upon a non-resident defendant ‘where he is not a resident of this state, but has property therein, and the court has jurisdiction of the subject of the action.’ ‘Where the subject of the action is real or personal property in this state, and the defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partly in excluding the defendant from any interest or lien therein.’ ‘Where the action is for divorce, in the cases prescribed by law.’

There was no provision of the Code expressly providing that the property of the defendant should in any case be attached as a condition precedent either to the granting of the order of publication or judgment by default after service of the summons by publication, and the practice was not uniform. It was held in some cases that a valid judgment upon a money demand could not be obtained unless property of the defendant had been attached, and that the judgment could then be enforced against the property attached, and operate upon it only. Finally, in 1858, the practice was regulated by rule 25 of the supreme court, which provided that, ‘in actions for the recovery of money only, when the summons has been served by publication, under section 135 of the Code, no judgment shall be entered unless the plaintiff, at the time of making the application for judgment, shall show by affidavit that an attachment has been issued in the action, and...