Hartzell v. Vigen
| Decision Date | 10 November 1896 |
| Citation | 69 N.W. 203,6 N.D. 117 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass County; McConnell, J.
Action by Wilbur J. Hartzell against Anders A. Vigen and John Rustad. From a judgment for defendants, plaintiff appeals.
Ball Watson & Maclay, for appellant.
The subject of the action is the claim of the plaintiff against the defendant or the contract or controversy out of which such claim arose. The phrase "subject of the action" was first used in this connection in the New York Code of 1849. That the phrase is not easily defined is apparent from the cases and authorities which have discussed it. Pomeroys Rem. § § 475, 487, 490, 775-6, 794; Bliss Code Pl. § § 126, 373, 375; McKinney v Collins, 88 N.Y. 216. The requirement that the court must have "jurisdiction of the subject of the action" does not mean that the court must have acquired jurisdiction by seizing property of the defendant before ordering the publication of the summons. Hulbert v Insurance Co., 4 How. Pr. 275; Force v. Gower, 23 How. Pr. 294; Fiske v. Anderson, 33 Barb. 71; Corson v. Ball, 47 Barb. 452; Kerr v. Mount, 28 N.Y. 659; McKinney v. Collins, 88 N.Y. 216; Bryan v. University, 19 N.E. 825, (dissenting opinion; ) Jarvis v. Barrett, 14 Wis. 591; Stone v. Myers, 9 Minn. 303; Cleland v. Taveernier, 11 Minn. 194; Iowa Bank v. Jacobson, 66 N.W. 453; Rule 35, N.Y.S. Ct. (1858,) 88 N.Y. 223; Rule 25, Dak. Dist. Ct. p. xxxi, 3, N. D. Neither Cooper v. Reynolds, 10 Wall. 308-320, nor Pennoyer v. Neff, 95 U.S. 714, hold that the seizure of defendants property must be made before publication of the summons can be begun. The affidavit for publication in the present case showed fully the nature of the action and that the court had jurisdiction, there was a substantial and sufficient compliance with the requirement of the statute. Inglie v. Welles, 53 Minn. 197; Crombie v. Little, 47 Minn. 581; Major v. Edwards, 53 N.W. 1041; Shippen v. Kimball, 27 P. 813; Anderson v. Goff, 72 Cal. 65; McCormick v. Paddock, 30 N.W. 602; Pettiford v. Zoellner, 8 N.W. 57; Martin v. Pond, 30 F. 19; Cooper v. Reynolds, 10 Wall. 308. The notes found in the possession of the garnishee, as a pledge, were subject to garnishment. Minn. Stat. § 5316; Tucker v. Vaughan, 23 N.W. 846; Ide v. Harwood, 14 N.W. 884; Cole v. Sater, 5 Minn. 468; McCann v. Randall, 17 N.E. 75; Storm v. Catzhausen, 38 Wis. 139; LaCrosse Bank v. Wilson, 43 N.W. 153; Elser v. Romnel, 56 N.W. 1107. The law of Minnesota governs the question. Cronan v. Fox, 50 N.J.L. 417. The contingency which renders a debt non-garnishable must be a part or condition of the contract itself out of which the alleged indebtedness grows and not a mere uncertainty as to how the account or balance may stand. Thorndyke v. DeWolf, 6 Pick. 120; Webster v. Peterson, 27 W.Va. 314; N. E. Ins. Co. v. Chandler, 16 Mass. 275; Dwinel v. Stone, 30 Me. 384; 8 Am. and Eng. Enc. Law, 1195, n. 2; Tucker v. Vaughan, 23 N.W. 846. The equity of the mortgagor in mortgaged chattels may be garnished. Becker v. Dunham, 6 N.W. 406; Burnham v. Doolittle, 15 N.W. 606; Smith v. Grant, 19 N.W. 184; Buck v. Merrill, 48 N.W. 96; Carty v. Fenstemaker, 14 Ohio St. 457; McCown v. Smith, 54 N.W. 31; Torbet v. Hayden, 11 Ia. 435. The judgment in the Minnesota action was entered in strict accord with statute and was valid to the extent of the property attached. Cousins v. Alworth, 47 N.W. 169; Anderson v. Goff, 72 Cal. 65; Cooper v. Reynolds, 10 Wall. 308. The fact that the exemplified record does not show whether the court required proof of the plaintiffs demand before rendering judgment, does not make the judgment void, nor render it subject to collateral attack. Skillman v. Greenwood, 15 Minn. 102; Dillon v. Porter, 31 N.W. 56; Hersey v. Walsh, 38 N.W. 613; Gorman v. Ball, 18 Wis. 24; Eagan v. Sengpiel, 46 Wis. 703; Frankfurth v. Anderson, 20 N.W. 662.
Benton & Amidon, for respondent.
The affidavit for publication was insufficient it simply states that "the court has jurisdiction of this action," it should have stated that "the court has jurisdiction of the subject of the action." The proceeding for service by publication is nonjudicial in its character. The filing of the affidavit with the clerk is merely a performance of a condition precedent to the right of making the publication. Carson v. Shoemaker, 57 N.W. 134; Barber v. Morris, 37 Minn. 194, 33 N.W. 559; Cousins v. Alworth, 44 Minn. 505; 47 N.W. 169. The affidavit was not a sufficient compliance with the statute. Rhode Island Trust Co. v. Keeney, 1 N.D. 411, 414. The court obtains no personal jurisdiction over nonresident defendants by service of process by publication. An action in personam at its commencement becomes as soon as it appears that the defendant cannot be served with process an action in rem, and the sole power of the court is to apply the property of the defendant within its jurisdiction to the satisfaction of the amount that shall be adjudged to be due the plaintiff. Penoyer v. Neff, 95 U.S. 714; Cooper v. Reynolds, 10 Wall. 308. The first step in acquiring jurisdiction in rem is to seize the property to be affected. Conklings U. S. Admiralty, 150-151; Benedicts Admiralty, § § 434, 435. The words "subject of the action" as used in the Minnesota statute refer to property that has been seized under the attachment. McKinney v. Collins, 88 N.Y. 216. The notes which the plaintiff sought to reach by garnishment proceedings were held as collateral for an indebtedness which was not then due, and were therefore not subject to garnishment. Wade on attachment, § § 2, 3, 330; § § 5312, 5315, Minn. Stat; Ettelsohn v. Fireman's Fund Ins. Co., 31 N.W. 201; Perea v. Colo. Nat. Bank, 27 P. 322; Scurlock v. Gulf C. & S. F. Ry. Co., 14 S.W. 148. When the right to money or property depends upon nothing but the running of time, it is due absolutely and without depending upon any contingency. Edney v. Willis, 36 N.W. 300. Rustads right to the notes depended entirely upon whether he should pay the indebtedness for which they were pledged as collateral. His right was contingent upon payment and until payment of the principal debt he had no right to the collateral notes whatever. Wheeler v. Day, 23 Minn. 545; Thorpe v. Preston, 4 N.W. 227; Rowell v. Felker, 54 Vt. 524; Durling v. Peck, 43 N.W. 65; § 5327, Stats. of Minn; Neill v. Rogers, 23 S.E. 702; Cross v. Brown, 33 At. Rep. 147; Jones on Pledges, 373. It does not appear that there was or would be any surplus in the hands of the bank after applying the notes to the satisfaction of its indebtedness. Younkin v. Collier, 47 F. 571. Credits of a nonresident debtor cannot be reached by proceedings in attachment or garnishment. Root v. Davis, 36 N.E. 669; Reno on Nonresidents, § 140.
This action is based upon a promissory note executed by the defendant Vigen in favor of the defendant Rustad. The note represented a portion of the purchase price of a certain tract of land in Cass County, and, concurrently with the execution of the note, Rustad executed a contract for the sale of said land to the defendant Vigen. It is alleged in the complaint that Rustad sold and transferred the note to plaintiff, and Rustad was made party defendant, and as to him a decree is asked confirming in plaintiff all Rustad's rights under the contract of sale, which, it is claimed, passed to the plaintiff by the purchase of the note, and as incident thereto. Both defendants answered, denying plaintiff's ownership of the note. This was the only issue tried below, and defendants prevailed. Plaintiff brings the case into this court.
We learn from the record that the plaintiff claims the ownership of the note by virtue of a purchase at execution sale in Hennepin County, in the State of Minnesota, which execution was issued upon a judgment entered in the District Court of said county, in an action brought by one McKindly against the defendant Rustad. A duly authenticated transcript of the entire record in that case was offered in evidence by appellant, and, on objection, was excluded. From that record we learn that Rustad was not a resident of the State of Minnesota when sued there, but was a resident of this state. There was no personal service of summons, but service by publication was made, or, at least, attempted. There was no appearance, and judgment was taken by default. A writ of attachment was issued about the time of the commencement of the action, and a garnishee summons served upon the Washington Bank of Minneapolis. The disclosure of the garnishee showed that the bank held Rustad's note for over $ 9,000, on which over $ 7,000 remained due and unpaid and that as a collateral to this indebtedness, the bank held notes belonging to defendant Rustad to the amount of about $ 22,000. Such subsequent proceedings were had in the case that all the collateral notes remaining in the hands of the garnishee after the indebtedness of Rustad to the garnishee was satisfied were sold on execution issued upon the judgment in favor of McKindly and against Rustad, and plaintiff herein became the purchaser at the execution sale. His title is assailed upon grounds which go to the jurisdiction of the District Court of Hennepin County, in the State of Minnesota, to enter any judgment against the defendant Rustad. By stipulation in this case the statutes of Minnesota, as published in 1894, are to be treated as in the record. The first attack upon the judgment, and the one chiefly relied upon, related to an alleged defect in the affidavit for publication of summons. Section 5204 of said Minnesota statutes specifies the cases wherein...
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