Martin v. Bryant

• Decision Date: 24 June 1911
• Citation: 80 A. 702,108 Me. 253
• Parties: MARTIN v. BRYANT.
• Court: Maine Supreme Court

80 A. 702

108 Me. 253

MARTIN

v. BRYANT.

Supreme Judicial Court of Maine.

June 24, 1911.

Exceptions from Supreme Judicial Court, Somerset County.

Action by John N. Martin against Frederick Bryant On exceptions by defendant. Sustained.

Assumpsit on account annexed to recover from the defendant, a nonresident, the sum of $117 for a casket, oak box, embalming, etc., and interest on the same. The defendant appeared specially and filed the following motion: "And now the said Frederick Bryant, party defendant in the above-entitled cause, appearing specially and solely for the purpose of objecting to the jurisdiction of this court, moves the court to dismiss the above-entitled action for want of jurisdiction over the defendant's person, because he says it appears by the plaintiff's writ and officer's return thereon that the said Frederick Bryant is the sole defendant in said action, and that he is not a citizen of the state of Maine, but is a nonresident, to wit, a resident of Worcester in the county of Worcester and state of Massachusetts, and it does not appear by the said writ and officer's return or record of said cause that the said defendant has ever been found and served with process within the limits of the state of Maine, or that any property belonging to the said defendant has been found or attached within said limits of the state of Maine." The motion was overruled, and the defendant excepted.

Argued before EMERY, C. J., and SPEAR, CORNISH, KING, BIRD, and HALEY, JJ.

H. H. Thurlough, for plaintiff.

Manson &, Coolidge, for defendant.

KING, J. On the second day of the return term of this action the defendant appeared specially and filed a motion to dismiss for want of jurisdiction. The case comes up on exceptions to the overruling of that motion. It is an action of assumpsit on an account annexed against a nonresident, and the officer's return is that he "attached a chip as the property of the within-named defendant and summoned him to appear as within commanded by leaving a summons with Manson & Coolidge, attorneys for the within-named defendant."

The return of an attachment of a chip is a legal fiction; it represents a nominal and not an actual attachment of property. Swift v. Hawkens, 103 Me. 371, 374, 69 Atl. 620; Middlesex Bank v. Butman, 29 Me. 19; Carleton v. Ins. Co., 35 N. H. 162.

The court acquires jurisdiction over the property of a nonresident when it is found within the state and attached. Both must concur. The jurisdiction over property is acquired by the attachment of the property, and only to the extent of the attachment. Eastman v. Wadleigh, 65 Me. 254, 20 Am. Rep. 695. In this case the court had no jurisdiction over property of the defendant, for none was attached.

Jurisdiction of the person of a nonresident is acquired only by service of process upon him within the jurisdiction of the court, or by his submission to its jurisdiction. But this defendant was not personally served with process, neither has he submitted to the jurisdiction of the court.

The plaintiff, however, contends that the court has jurisdiction over the person of the defendant by virtue of the service of the writ upon his attorneys in this state. He relies upon the provisions of section 21, c. 83, R. S., which reads: "If any defendant is not an inhabitant of the state, the writ may be served on him by leaving a summons or copy, as the case may be, with his tenant, agent or attorney in the state, fourteen days before the sitting of the court; and if his goods or estate are attached, and he has no such tenant, agent or attorney, after entry, the court in the county where the process is returnable, or before entry, the court in any county, may order notice to the defendant, or a justice thereof in vacation may make such order signed by him on the back of the process; and if it is complied with and proved, he shall answer to the suit." The plaintiff contends that the first clause of the statute quoted authorizes the service of any writ against a nonresident to be made upon his tenant, agent, or attorney in the state, whether property is attached thereon or not, and when so made the court acquires jurisdiction over the person of the defendant. This contention we think is not maintainable.

The statutory provisions for service of a writ against a nonresident upon his tenant, agent, or attorney was first enacted in this state in 1821 (chapter 59). It was there provided for such service in two cases, (1) writs of attachment on which property had been attached, and (2) where the process was by original summons. It was also there provided that where an attachment had been made and the nonresident defendant had no tenant, agent, or attorney in the state, the court could order notice to be given to him. In the Revision of 1840 it was provided (chapter 114, § 27): "If the defendant was never an inhabitant of the state, or has removed therefrom, then the summons, where goods and estate are attached, or a copy of the original summons, as the case may require, shall be left with his tenant, agent or attorney, fourteen days before...