Dorr's Adm'r v. Rohr

• Decision Date: 16 September 1886
• Citation: 82 Va. 359
• Parties: DORR'S ADM'R v. ROHR AND ALS.
• Court: Virginia Supreme Court

82 Va. 359

DORR'S ADM'R v. ROHR AND ALS.

Supreme Court of Appeals of Virginia.

September 16, 1886

Argued at Wytheville. Decided at Staunton.

Appeal from decree of circuit court of Washington county, rendered at its May term, 1883, in proceedings had in an attachment in equity under Code 1873, chapter 148, section 11, instituted by Philip Rohr against A. H. Dorr, a non-resident of this State, and Robert Gibboney, trustee of Thomas L. Preston, as garnishee, holding funds belonging to said Dorr; and on an injunction awarded on the prayer of said Gibboney's executrix in her cross-bill, which, after his death, she filed in the circuit court. In July, 1861, an order of publication was executed against the non-resident defendant who appealed from the decree rendered to this court.

Opinion states the case.

J H. Gilmore and Ro. M. Hughes, for the appellants.

Fulkerson & Page, J. H. Wood, J. W. Caldwell, and A. H. Blanchard, for the appellees.

OPINION

LEWIS P.

Among the errors assigned is the action of the circuit court in overruling the plea of the statute of limitations filed by the appellant as the administrator of the defendant, Dorr; and we are of opinion that the assignment is well taken.

In computing the time for the running of the statute, the suit must be deemed to have been commenced as against Dorr when he was brought in by the amended bill in December, 1879. At that time the claims asserted in the bill were clearly barred, if they were ever valid. The suit was not founded on the sealed contracts between the parties, but was for work and labor done, and other items, as to which the five years' limitation prescribed by the statute is applicable.

It appears that Rohr, the plaintiff, was a sub-contractor under Dorr & Co. to build certain sections of the Virginia and Kentucky railroad. There were two contracts under seal between the parties--one executed in 1857, the other in 1860. The present suit was originally instituted in July, 1861. To the bill one Robert Gibboney, trustee, and various other persons alleged therein to be debtors of the defendant, Dorr, were made parties defendant. At the same time an attachment was issued against the estate of Dorr as a non-resident defendant, and there was an order of publication; but Dorr was a citizen and resident of the State of New York, and could not, therefore, be lawfully proceeded against by an order of publication. For the war was then raging, and all communication between the inhabitants of the Confederate States, on the one hand, and of those States adhering to the Union, on the other, was prohibited by law. Hence the execution of the order of publication was without any legal effect whatever. It did not constitute notice, either actual or constructive. The non-resident defendant had he seen the order as published, could not have lawfully obeyed it, even if he had had the physical power to have done so; and consequently all proceedings founded upon it are void. This is well settled, both on principle and authority.

" It is a principle of natural justice, of universal obligation, that before the rights of an individual be bound by a judicial sentence, he shall have notice, either actual or implied, of the proceedings against him." Chief Justice Marshall, in The Mary, 9 Cranch 126: " It is a rule, founded on the first principles of natural justice, that a party shall have an opportunity to be heard in his defence, before his property is condemned." Windsor v. McVeigh, 93 U.S. 274. " It lies at the very foundation of justice that every person who is to be affected by an adjudication should have the opportunity of being heard in his defence." Underwood v. McVeigh, 23 Gratt. 409. " A different result would be a blot upon our jurisprudence and civilization." McVeigh v. United States, 11 Wall. 259.

In Dean v. Nelson, 10 Wall. 158, the case turned on the validity of certain proceedings to foreclose a mortgage, taken during the war within the Union lines, whilst the defendants were absent from home within the Confederate lines, and were not permitted to return. Notice to appear was published in accordance with the laws of Tennessee, where the proceedings were conducted; and the defendants not appearing, an order of foreclosure was accordingly made. The Supreme Court held the proceedings to be void. " The defendants," said the court, " were within the Confederate lines at the time, and it was unlawful for them to cross those lines. * * A notice directed to them and published in a newspaper was a mere idle form. As to them the proceedings were wholly void."

The case of Lasere v. Rocherean, 17 Wall. 437, is to the same effect.

In Earle v. McVeigh, 91 U.S. 503, certain judgments were held to be " " absolutely void," which had been obtained during the war upon notices posted at the front-door of what had been the defendant's " usual place of abode" in the city of Alexandria, after the occupation of the city by the Federal forces, and seven months after the defendant, with his family, had left the city and taken up his residence within the Confederate lines, where he remained until the war was over. The court in its opinion again declared it to be " a maxim of universal application" that " no man shall be condemned in his person or property without notice and an opportunity to be heard in his defence."

In other words, notice and an opportunity to be heard are essential requisites to the jurisdiction of all courts, even in proceedings in rem, and judgment without jurisdiction is a nullity. Galpin v. Page, 18 Wall. 350; ex parte Lange, Id., 163; Fultz v. Brightwell, 77 Va. 742; 1 Smith's Lead. Cas. (8th Am. ed.), p. 1156--notes to Crepps v. Durden.

It is needless to cite further authority to show that the circuit court did not acquire jurisdiction of the person of the non-resident defendant by any of the proceedings that were had during the war. And assuming that jurisdiction was acquired of the person of the garnishee, Gibboney, who being within the territorial limits of the court, was summoned to answer, yet no decree could be rendered affecting the fund in his hands belonging to the non-resident defendant, which could bind the latter without his being a party to the suit.

It is contended, however, by counsel for appellees that jurisdiction of the res --that is, the fund attached, was acquired by service of process on the garnishee with the attachment order thereon endorsed, and that further notice was not essential to maintain the jurisdiction. But this position is altogether untenable.

It is true that attachment being a summary remedy, a seizure of the estate of a non-resident defendant, or the levy of an attachment upon it, may precede the giving of notice. But by the express provisions of the statute, now contained in section 20, of chapter 148, of the Code (1873), notice is required to be given to the debtor; and if under such circumstances as existed during the late war it becomes legally impossible to give notice, the jurisdiction as to him comes to an end. It is the same in legal effect as if under ordinary circumstances no attempt were made to give notice at all, or as if jurisdiction having been acquired and notice given, a hearing were denied, as was actually the case in Windsor v. McVeigh, and in Underwood v. McVeigh, supra, in both of which cases the proceedings were held to be void, and therefore impeachable collaterally.

Another answer to the position of the appellees is, that the attachment was issued under the eleventh section of the above mentioned chapter of Code, which provides that " at the time of or after the institution" of a suit against a non-resident defendant, an attachment may be sued out, & c., and here, for the reasons already stated, the suit as against Dorr had not been lawfully commenced when the attachment issued.

The theory upon which in proceedings purely in rem, a seizure is notice and gives jurisdiction is, that the res, if not in the possession of the owner himself, is intrusted to an agent, who has the power, and whose duty it is to represent the owner and protect his interests. But assuming that an attachment proceeding is of a complex character, and in some of its features partakes of the nature of a proceeding in rem-- St. Claire v. Cox, 106 U.S. 350; 2 Smith's Lead. Cas. (8th ed.) p. 965, et seq --can such a principal apply to a case like the present? Does a garnishee represent his creditor, the principal defendant? And did service of process on the garnishee in the present case, any more than the order of publication, give notice to Dorr, who, being a resident of New York, could not have been lawfully communicated with? We unhesitatingly answer in the negative, and consequently no lien was acquired by the attachment which was issued in July, 1861. In other words, as against Dorr, it was unavailing for any purpose. Nor is there anything in the opinion in Pennoyer v. Neff, 95 U.S. 714, in conflict with this view.

The case of Cooper v. Reynolds, 10 Wall. 308, has no application to the question before us. It was not decided in that case that a judgment where there is an attachment, a seizure of the res is good, though no other notice be given, for there the attachment was issued and notice was published " according to law; " but the point decided was, that a judgment rendered in attachment proceedings which are irregular merely cannot be impeached collaterally. This is not disputed, and no such question arises in the present case. Here the proceedings in question are void, and they are assailed directly on appeal. The plea of the statute of limitations, interposed by the administrator of Dorr after the amended bill was filed, ought therefore to have been sustained. For before the plea was filed there had been...