Coyne v. Plume

• Decision Date: 19 April 1916
• Citation: 97 A. 337,90 Conn. 293
• Parties: COYNE v. PLUME et al.
• Court: Connecticut Supreme Court

97 A. 337

90 Conn. 293

COYNE

v. PLUME et al.

Supreme Court of Errors of Connecticut.

April 19, 1916.

Appeal from Superior Court, New Haven County; Gardiner Greene, Judge.

Suit by Edward Coyne against Frank C. Plume and others. From a judgment for plaintiff, the named defendant and another appeal. Judgment reversed, with direction to grant motion to erase for want of jurisdiction and enter judgment for defendants.

Suit to secure the application of the income accruing on a testamentary trust fund to the payment of debts due the plaintiff from the defendant Plume, the beneficiary of the income, and for other relief incidental thereto, brought to and tried by the superior court in New Haven county, Greene, J. Facts found and judgment rendered for the plaintiff for $3,149, to be paid from the income of said fund, and appeal by the defendants Plume and Willard. Error.

Charles S. Hamilton, of New Haven, for appellants. Ulysses G. Church, of Waterbury, for appellee Coyne. Walter E. Monagan, of Waterbury, for appellee Colonial Trust Co.

WHEELER, J. (after stating the facts as above). We shall not consider the rulings sustaining the demurrer to the plea in abatement filed by Plume and Willard, or that overruling the demurrer to the complaint filed by them, for the chief questions raised by these demurrers are raised by the motion to erase for want of jurisdiction filed by Plume and Willard at the conclusion of the evidence, and in the several claims of law made by them upon the argument of the cause and in the judgment rendered. If the court had no jurisdiction, the motion to erase should have been granted.

When Plume and Willard pleaded in abatement to the jurisdiction of the court, they appeared specially. When the plaintiff's demurrer to their plea was sustained, they, not waiving their rights, and within the time limited by an order of court, filed a demurrer to the complaint, and, upon its being overruled, answered over and went to trial.

The finding sets forth these facts: On January 1, 1910, Plume was indebted to the plaintiff by book account and on a note, credit for which had been obtained by the false representations of Plume and Willard, believed in and relied upon by the plaintiff. Plume's father, by will, gave $35,000 to the defendant the Colonial Trust Company in trust to pay from the income thereof $1,200 a year to his son, the defendant Plume. There was no other provision in the will for Plume, and he had no means of satisfying the plaintiff's claim except through the income from this fund. Between November 21, 1907, and March 29, 1909, Plume gave the plaintiff five assignments of the income of this fund for named months, and both Plume and Willard dissuaded the plaintiff from filing these assignments with the Colonial Trust Company by means of false and fraudulent representations, and, relying thereon, plaintiff failed to notify the trust company of the assignments. On December 16, 1907, Plume assigned his interest in this fund to Willard. On December 7, 1911, Plume made another assignment to Willard of all his interest in this fund. Notice of both assignments were given the trust company. Both assignments were without consideration, and were made to prevent the plaintiff and other creditors from securing their claims from the trust fund. At the time the plaintiff brought this action, on December 4, 1912, he garnisheed the trust company, which then had on hand $1,100 of accrued income from this fund, and Willard then claimed that Plume owed him only $825. This $1,100 was at this time under garnishment in two suits against Plume and Willard, and thereafter judgments were rendered whose payment took all of said $1,100, and the amount of these judgments was more than the amount which Willard claimed Plume owed him. At the date of the judgment herein there was due to the plaintiff from Plume the sum of $3,149.40, and at this time the trust company had the sum of $2,500 of income accrued on said fund since the beginning of this action. On January 13, 1913, the trust company was garnisheed in a suit by Mr. Seymour against Plume, and the trust company then had in its hands $1,100 of income from this fund. Other facts which relate to the fraudulent conduct of Plume and Willard in preventing the collection of the claim of the plaintiff against Plume need not be specifically referred to.

Plume and Willard were nonresidents, and were not personally served with process within the state. They appeared specially and pleaded to the jurisdiction. A demurrer to their plea was sustained. They pleaded over and went to trial. The trial court held that Plume and Willard were subject to a personal judgment, since they, by pleading to the merits and going to trial after the demurrer to their plea to the jurisdiction had been sustained, thereby waived their right to contest the jurisdiction. These defendants were nonresidents. They entered a special appearance, and were compelled to plead and go to trial or suffer a default They pleaded and went to trial, expressly denying the jurisdiction of the court and refusing to waive any right to contest the jurisdiction. It would be unjust to make their right of appeal for want of jurisdiction conditioned upon their submission to a judgment by default when they had done all they could to protect their rights.

The rule differs in different jurisdictions. In some the rule adopted by the trial court prevails. In the great majority it is held that one who after the overruling of his plea to the jurisdiction under protest pleads to the merits under penalty of default cannot be said to act voluntarily, and does not waive his right to thereafter contest the jurisdiction And this rule we adopt. Walling v. Beers, 120 Mass. 548; Harkness v. Hyde, 93 U. S. 476, 479, 25 L. Ed. 237; Southern Pacific Co. v. Denton, 146 U. S. 202, 207, 13 Sup. Ct. 44, 36 L. Ed. 942; Rutherford v. Holmes, 66 N. Y. 368; Corpus Juris, vol. 1, p. 44.

Since Plume and Willard were not served with process within the state, the jurisdiction of our court depends upon its control of their property in such way as to enable it by its process to appropriate the property to the payment of the amount which might be found to be due the plaintiff. Smith v. Gilbert, 71 Conn. 149, 151, 41 Atl. 284, 71 Am. St. Rep. 163.

An action of that nature is not strictly an in rem action, but rather a quasi in rem action. It is a proceeding whose purpose is to subject the income provided for Plume from this fund to the payment of his debt. The jurisdiction of our court rests in the dominion which it has secured over Plume's property or his property rights. In the strictly in rem action the judicial seizure and possession of the res is essential. In the quasi in rem action the equivalent of the judicial seizure will satisfy, as for example, by the writ of attachment, or the writ of garnishment, or from some contract lien against the property which is sought to be enforced as by way of foreclosure. All of the property of Plume and Willard with the Colonial Trust Company was in this action attached under our process of foreign attachment.

On December 5, 1912, when this action was begun, all of the $1,100 of accrued income in the hands of the trust company was under attachments, and was paid in satisfaction of executions issued in such actions prior to the date of trial in this cause. When the motion to erase was made at the conclusion of the evidence there was no income in the hands of the trust company which was in the hands of the trust company when this action...