Moore v. Wayne Circuit Judge
| Decision Date | 15 October 1884 |
| Court | Michigan Supreme Court |
| Parties | MOORE v. WAYNE CIRCUIT JUDGE. |
This is an application for a writ of mandamus to compel the circuit judge to hear a cause and proceed to judgment in a suit where the relator is plaintiff and John C. Davis is defendant. The facts are that John C. Davis is a non-resident of this state but resides at Madison, in the state of Indiana. On the twelfth day of December, A.D.1883, relator sued out of the circuit court for the county of Wayne a writ of summons against the said John C. Davis, in an action of assumpsit to recover the amount claimed to be due on an open account which summons was returnable January 1, 1884, and was on the second day of January duly returned "not found" as to said defendant. On December 12, 1883, the relator made and caused to be filed in said court four several affidavits in garnishment, in compliance with section 8087, of Howell's Statutes, (a copy of which section is given in the margin, [1]) and also on the same day caused to be issued several writs of garnishment against the persons alleged in the affidavits to be indebted to Davis; that disclosures were filed by the garnishees, two of whom demanded trial of the garnishees' liability, and the issues so framed stand for hearing. The disclosures show that if any liability exists it is on account of the garnishees' being indebted to Davis, and not on account of any money on property in their hands belonging to him. On January 16, 1884, relator caused to be delivered and personally served on the principal defendant, John C. Davis, at Madison, in the state of Indiana, a true copy of the summons, affidavits, and writs of garnishment, with return of service thereon, and with a written notice attached, signed by the plaintiff's attorney, and stating that said John C. Davis is notified to appear and defend said suit within 30 days after service of a true copy of said papers as thereto attached, or his default would be entered and judgment taken. Due proof of this service was filed on the twenty-fourth of January. Within 20 days after the return-day of the summons the declaration was filed; and Davis not having caused his appearance to be entered within 30 days after service on him of the papers, the plaintiff entered his default for want of an appearance, plea, or demurrer, and afterwards he entered a second default and order, making the same absolute, and referring it to the court to assess his damages. He afterwards applied for and obtained a commission, and took a deposition of a witness in the city of Cincinnati, which was returned and filed on the sixth day of May, 1884. The relator made application to the respondent, then sitting as circuit judge, to proceed to hear said cause, and offered to put in evidence the deposition and files and records in the garnishee causes, and requested said circuit judge to render a judgment in said principal case. The circuit judge declined to direct judgment to be entered against the principal defendant for want of jurisdiction in the court, for the reason that no service of process had been made on said defendant within the state, nor had his property been attached, as provided by law, in such manner as authorized judgment to be entered against such defendant. Under the statute regulating the practice in garnishee cases, the plaintiff can proceed no further against the garnishees until he has obtained judgment against the principal defendant. In case of non-resident defendants, section 8087 provides that, upon filing an affidavit of such service, further proceedings to judgment may be had as in ordinary personal actions; and by section 8106 it is provided that, in all cases when the principal defendant does not appear in the cause within the time fixed by the statute and rules of court for such appearance, the plaintiff shall proceed and perfect his judgment against such principal defendant as soon as he shall be entitled thereto under the rules and practice of the court.
The question raised is whether the courts of this state can acquire jurisdiction to render a personal judgment against a defendant where he is a non-resident and is not served with process within its jurisdiction, but is served out of the jurisdiction with notice of suit it having been commenced against him, and of garnishee proceedings against his debtors residing within the jurisdiction. So far as such power can be given by statute to the court proceed to judgment, there can be no question but that it is conferred in this case. It is a well-recognized principle that every state possesses exclusive jurisdiction and sovereignity over persons and property within its territory, and it may make laws to subject properly situated within its limits, owned by non-residents, to the payment of claims due to its own citizens from them. Such legislation is based upon the necessity of the case, and the injustice which would result from permitting non-resident debtors to withdraw their property or assets from the jurisdiction of the state, and is a legitimate exercise of its authority to hold and appropriate the property of such debtors to satisfy the claims of its own citizens. 1 Smith, Lead.Cas. (7th. Ed.) 1121 et seq. In the absence of personal service upon the non-resident defendant within the jurisdiction of the court, or his voluntary appearance in the suit, the jurisdiction can extend no further than an inquiry as to the amount of the obligation of the non-resident to its own citizens for the purpose of showing the extent necessary to control the disposition of the property. Picquet v. Swan, 5 Mason, 35; Boswell's Lessee v. Otis, 9 How. 336; Cooper v. Reynolds, 10 Wall. 308; Pennoyer v. Neff, 95 U.S. 714; Freem Judgm. � 573; Whart.Confl.Laws, �� 649, 715; Amer. Lead. Cases, (5th Ed.) 625 et seq.
Jurisdiction in such cases is upheld mainly upon the ground that the object of the proceedings is to subject certain specified property to the payment of the demand, and are substantially proceedings in rem against the property, and are justified by principles underlying such proceedings. Whart.Confl.Laws, � 717; Waples, Proc. in Rem, c. 55, and cases cited above. One of the essential requirements to sustain proceedings in rem is that notice shall be given, either general to all the world, or special to the parties interested. The statute under consideration provides for such notice, and that it shall be served upon the party interested, and proof thereof filed before judgment can be entered. The defendant was apprised that proceedings were instituted for the purpose of reaching credits belonging to him in Michigan, and an opportunity was afforded of appearing and opposing any adjudication either against him, or against his credits in possession of his debtors. He did not appear, and the statute authorized the plaintiff to proceed to judgment as a part of the mode of proceeding to subject the defendant's credits in the hands of the garnishee to the payment of plaintiff's demand. For that purpose and to that extent the judgment rendered pursuant to the statute will protect the garnishee against liability over to the principal defendant for the amount of any judgment rendered against him in the garnishee proceedings. The question does not arise upon this record, and we do not feel called upon to discuss the validity of such judgment if called in question in courts outside of the state of Michigan. Within the state the court has ample power to control its process, and confine the proceedings under it to the property reached by garnishment.
The learned circuit judge informs us in his answer that his refusal to render judgment was based upon the cases of People v. Judge of Wayne Circuit Court, 26 Mich. 100, and American Exp. Co. v. Judge of Wayne Circuit Court, not reported, in which cases motions for writs of prohibition were made. In the McCloskey Case it was held that the Wayne circuit court failed to acquire jurisdiction because no service was made upon the defendant, and no person was garnished in that county. It was said: In the case under consideration service was had upon the garnishees in Wayne county, thus giving to the court jurisdiction, and obviating the objection raised in the case cited.
The American Exp. Co. v. Judge of Wayne Circuit Court, above referred to, was this: The American Express Company was a joint-stock association, created and existing under the laws of the state of New York. It did business in the state of Michigan, as well as in other states. The Eagle Mowing & Reaping Machine Company was also a corporation organized and existing under the laws of...
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Moore v. Wayne Circuit Judge
...55 Mich. 8420 N.W. 801MOOREv.WAYNE CIRCUIT JUDGE.Supreme Court of Michigan.Filed October 15, CAMPBELL, J., dissenting. [20 N.W. 801] CHAMPLIN, J. This is an application for a writ of mandamus to compel the circuit judge to hear a cause and proceed to judgment in a suit where the relator is ......