Cheshire Nat. Bank v. Jaynes

• Decision Date: 17 May 1916
• Citation: 224 Mass. 14,112 N.E. 500
• Parties: CHESHIRE NAT. BANK v. JAYNES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

224 Mass. 14

112 N.E. 500

CHESHIRE NAT. BANK

v.JAYNES et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 17, 1916.

Exceptions from Superior Court, Suffolk County; Marcus Morton, Judge.

Action by the Cheshire National Bank against Charles W. Jaynes and trustees. There was a finding for plaintiff, and defendants bring exceptions. Exceptions sustained.

Bates, Nay, Abbott & Dane, Robt. E. Buffum, and John E. Benton, all of Boston, for plaintiff.

Warner, Warner & Stackpole, of Boston, for defendants.

RUGG, C. J.

This is an action of contract brought by a national banking corporation domiciled in the state of New Hampshire against a resident of the state of Connecticut, upon whom no personal service has been made, but whose property has been attached by trustee process under the statute making provision for reaching the property of a nonresident. R. L. c. 170. The defendant filed a special appearance, whereby he has undertaken by apt words not to submit himself generally to the jurisdiction of the court, but only so far as is necessary in order to protect his interest in the goods, effects and credits in the hands of the alleged trustees. In proceedings, which need not be narrated in detail, the superior court has ruled that a non-resident defendant could not ‘appear, answer to the merits and defend the case for the purpose of protecting his rights in property trusteed or attached and at the same time by ‘special appearance’ repudiate the jurisdiction of the court. If he is in court claiming its protection upon the merits of the case, he must submit to the obligations which the court places upon every litigant before it.' The correctness of this ruling is challenged.

This precise question does not appear to have been decided. It has been determined that a valid personal judgment cannot be rendered against a nonresident defendant who is not served with process within the state and who does not appear. When property of a non-resident defendant is attached within the state, valid judgment may be entered, enforceable against such property but possessing no further validity unless such non-resident defendant is served personally with process within the state, or appears. Lowrie v. Castle, 198 Mass. 82, 89, 83 N. E. 1118;Eliot v. McCormick, 144 Mass. 10, 10 N. E. 705;Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565;Freeman v. Alderson, 119 U. S. 185, 7 Sup. Ct. 165, 30 L. Ed. 372. A nonresident defendant may ignore the proceedings in the courts of another jurisdiction when not served with process in that other jurisdiction and when no valid attachment of his property is made. When attempt is made to affect his rights by judgment obtained in the absence of service of process or attachment of property, he may show its invalidity in the courts of any forum, either under the ‘full faith and credit’ clause of the federal Constitution or under general principles of international comity. Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159, 206-214, 89 N. E. 193,40 L. R. A. (N. S.) 314;Brown v. Fletcher's Estate, 210 U. S. 82, 28 Sup. Ct. 702, 52 L. Ed. 966. Perhaps it would be competent for the Legislature to enact, without violating any provision of the federal Constitution, that no one may voluntarily appear in our courts to contest any question there pending, even when some of the property is held under attachment, without at the same time submitting himself wholly to the jurisdiction of our courts for all purposes of the proceeding. York v. Texas, 137 U. S. 15, 11 Sup. Ct. 9, 34 L. Ed. 604;Western Indemnity Co. v. Rupp, 235 U. S. 261, 272, 35 Sup. Ct. 37, 59 L. Ed. 220;Coe v. Armour Fertilizer Works, 237 U. S. 413, 426, 35 Sup. Ct. 625, 59 L. Ed. 1027.

[4] But that question is not now presented and expressly is left open. R. L. c. 170, § 1, which governs this matter, makes no such provision.¹ This section has been construed with some strictness. Roberts v. Anheuser Busch Brewing Ass'n, 215 Mass. 341, 102 N. E. 316. Its final clause does not deny full effect to a judgment rendered after a general appearance, even without service. Gahm v. Wallace, 206 Mass. 39, 91 N. E. 1002. But it does not disclose a purpose to impose upon a non-resident defendant the burden of entering a general appearance in order to protect his property rights so far as they are put in peril by effectual attachment of his property upon the original writ. It does not by apt words cover a situation like that now presented. So far as there is implication from the words used, it seems to be that the action shall not be maintained without service with process within this commonwealth (unless there in voluntary general appearance) except so far as it may affect property held under effectual attachment. The provisions for notice to a non-resident defendant in sections 6 and 9 of the same chapter, do not manifest a purpose to compel him to appear generally if he appears at all. Indeed, reading sections 1, 6 and 9 together, and giving them all appropriate force, they are quite satisfied by interpreting them to mean that when effectual attachment of property of a non-resident is made, the best kind of notice which can be given under the circumstances shall issue in order to afford him opportunity to come into court and be heard on the question whether the property so attached ought to be held to satisfy a judgment in accordance with the terms of section 1.

‘The fundamental requisite of due process of law is the opportunity to be heard.’ Grannis v. Ordean, 234 U. S. 385, 394, 34 Sup. Ct. 779, 58 L. Ed. 1363.

‘That to condemn without a hearing is repugnant to the due process clause of the Fourteenth Amendment needs nothing but statement.’ Riverside Mills v. Menefee, 237 U. S. 189-193, 35 Sup. Ct. 579, 59 L. Ed. 910.

[5] Treating the question as one of general law, quite uncontrolled by statute, the same result is reached. It was said by Chief Justice Parsons in Bissell v. Briggs, 9 Mass. 462, at 468,6 Am. Dec. 88:

‘In order to entitle the judgment rendered in any court of the United States to the full faith and credit mentioned in the federal Constitution, the court must have had jurisdiction, not only of the cause, but of the parties. To illustrate this position, it may be remarked that a debtor living in Massachusetts may have goods, effects, or credits in New Hampshire, where the creditor lives. The creditor there may lawfully attach these, pursuant to the laws of that state, in the hands of the bailiff, factor, trustee. or garnishee, of his debtor; and on recovering judgment, those goods, effects, and credits, may lawfully be applied to satisfy the judgment; and the bailiff, factor, trustee, or garnishee, if sued in this state for those goods, effects, or credits, shall in our courts be protected by that judgment, the court in New Hampshire having jurisdiction of the cause for the purpose of rendering that judgment, and the bailiff, factor, trustee, or garnishee, producing it, not to obtain execution of it here, but for his own justification. If, however, those goods, effects, and credits, are insufficient to satisfy the judgment, and the creditor should sue an action on that judgment in this state to obtain satisfaction, he must fail, because the defendantwas not personally amenable to the jurisdiction of the court rendering the judgment. And if the defendant after the service of the...