Gary v. Nw. Masonic Aid Ass'n

• Decision Date: 18 January 1893
• Citation: 53 N.W. 1086,87 Iowa 25
• Parties: GARY v. NORTHWESTERN MASONIC AID ASS'N.
• Court: Iowa Supreme Court

87 Iowa 25

53 N.W. 1086

GARY

v.NORTHWESTERN MASONIC AID ASS'N.

Supreme Court of Iowa.

Jan. 18, 1893.

Action at law to recover of defendant $1,000 and interest upon a certain benefit certificate issued by the defendant to John E. Gary, husband of the plaintiff. Said certificate was made payable to the plaintiff after the death of her husband, who departed this life August 30, 1888. Plaintiff alleges as a reason why she does not set out said certificate as a part of her petition that it was not in her possession, but in the possession of one E. H. Gary, of Illinois, he having obtained the same by fraud, deceit, threats, and false representations. In an amendment to her petition she sets out said certificate, having been permitted, through the courtesy of defendant's attorneys, to make a copy thereof. Defendant admits its liability on the certificate, but alleges that on August 30, 1888, the plaintiff executed and delivered to E. H. Gary a written assignment of said certificate, and that she has not since been the owner thereof. The defendant also answered, setting out a certain proceeding in chancery in the superior court of Cook county, Ill., which will be hereafter noticed, claiming that by reason of said proceeding the plaintiff is barred from recovering in this action. There was a trial by jury, and a verdict for the plaintiff. Defendant appeals.

GIVEN, J.

1. A rehearing was granted, and the case is again before us for consideration. The former opinion will be found in 50 N. W. Rep. 27. A review of the questions presented requires that we notice the condition of the pleadings. As already stated, no question is made as to defendant's liability, nor is there any made as to plaintiff's right to recover thereon, but for the matters pleaded in defense. Defendant answered, alleging that on or about August 30, 1888, the plaintiff executed and delivered to Elbert H. Gary a written assignment of said certificate. That, each of said parties claiming to be entitled to the money due from appellant on said certificate, appellant commenced an action in chancery, November 9, 1888, against said E. H. Gary and Julia K. Gary, in the superior court of Cook county, Ill., a court of general jurisdiction, for a decree declaring to which of them said money belonged. That appellant paid the full amount due upon said certificate into said court to abide the result of said case. That notice of the pendency of said action was personally served upon Julia K. Gary at Webster City, Iowa; that she failed to appear or answer, and appellant's bill was taken as confessed against her. That E. H. Gary appeared and answered, claiming said money by virtue of the assignment of the certificate to him, and that a decree was entered in his favor, ordering that said money be paid to E. H. Gary upon his surrendering the certificate for cancellation and delivery to the defendant; and that, in pursuance of said decree, said money was paid to E. H. Gary. On motion of the plaintiff this part of defendant's answer was stricken out, and of this ruling the defendant complains. It will be observed that the answer shows that the only notice given to this plaintiff of the pendency of that action was by service upon her at Webster City, Iowa, where she then resided, and that she did not appear in that action. The contention is whether the superior court of Cook county, Ill., had jurisdiction as to this plaintiff in that action. Upon this question we are content with the reasoning and conclusion expressed in the former opinion, as follows: “It is an elementary and universally acknowledged principle that jurisdiction cannot be acquired over nonresident persons by process served without the territorial limits of the state in which the court attempting to exercise jurisdiction is held, and no state or sovereignty can extend its process beyond its own territory. Story, Confl. Laws, 539; Weil v. Lowenthal, 10 Iowa, 578; Darrance v. Preston, 18 Iowa, 399; Bates v. Railway Co., 19 Iowa, 260; Lutz v. Kelly, 47 Iowa, 309. It is to be understood that the bill of interpleader, and the decree based thereon, is not a proceeding in rem. If it were, the courts of the state, may, by process of attachment against the property of a nonresident, or by the garnishment of a debt due to such person, appropriate the property or debt to the payment of the claim of the creditor. But in such case the judgment merely affects the property or thing seized. The action in chancery relied upon in this case was not in any sense a special proceeding, in which it was sought to seize the property of a nonresident, and apply it in payment of a debt. It was an attempt to adjudicate a mere personal right to a money demand claimed by the plaintiff herein. We are very clearly of the opinion that the decree under consideration is void, and this question appears to us to demand no further consideration. The ruling on the motion appears to us to have been correct.”

2. To the defendant's plea that plaintiff had executed and delivered to E. H. Gary an assignment in writing of said certificate, plaintiff replied, admitting that she made the assignment, and alleging that she received no consideration therefor; that the same was signed by her because of duress and threats, and that it was procured by false and fraudulent representations. Plaintiff also alleges that on October 12, 1888, she notified defendant in writing that she repudiated said assignment, and that the same had been procured by threats, and without any consideration. As correctly stated in the former opinion: “The court instructed the jury that there was no sufficient evidence of duress, and confined the investigation to a want of consideration for the assignment, and fraud in procuring it to be signed by...