Munger v. Doolan

• Decision Date: 10 June 1903
• Citation: 55 A. 169,75 Conn. 656
• Court: Connecticut Supreme Court
• Parties: MUNGER v. DOOLAN.

55 A. 169

75 Conn. 656

MUNGER

v. DOOLAN.

Supreme Court of Errors of Connecticut.

June 10, 1903.

Appeal from Superior Court, New Haven County; Edwin B. Gager, Judge.

Action by Verrenice Munger, administrator, against Elizabeth J. Doolan, brought to declare void and set aside certain judicial proceedings by which defendant acquired the apparent title and possession of certain real estate. From a judgment for plaintiff, defendant appeals. Affirmed.

In 1893 the defendant brought suit against her brother James Doolan, returnable to the court of common pleas in New Haven county, and recovered judgment. A judgment lien was thereupon placed upon certain real estate in Ansonia standing in said defendant's name which had been, in form, attached in said suit. Proceedings to foreclose said lien followed, and judgment of foreclosure was obtained against said James Doolan, the only defendant. The time for redemption expired on the first Monday of October, 1894, and, no redemption having been made, a certificate of title, by virtue of the foreclosure, was filed on the day following; and Elizabeth Doolan. the then plaintiff, and now defendant, has since continued in possession of the premises, claiming to be the owner thereof by force of the said proceedings. In 1880 said James Doolan, who had theretofore made his home with his said sister Elizabeth in Ansonia, left for parts unknown. He has never since been heard from by his sister or any other relatives or persons who would naturally hear from him if living. In 1899. upon the application of a brother of James, the plaintiff, Munger, was duly appointed by the court of probate for the district of Derby administrator on said James' estate. The present action was brought by him as such administrator to declare void and set aside all of said legal proceedings. James became the owner of said real estate in 1809. After his disappearance, Elizabeth assumed charge and possession thereof, and so continued down to the time her claimed ownership under the foreclosure began. The other pertinent facts are stated in the opinion.

William S. Downs, for appellant.

Verrenice Munger and Robert L. Munger, for appellee.

PRENTICE. J. (after stating the facts). Various questions arising out of the situation disclosed by this record have been argued before us. Prominent in the plaintiff's brief is the claim that, as James Doolan had been absent from his home and unheard of for the period of thirteen years at the time when his sister Elizabeth instituted her original suit against him, he was dead, in contemplation of law, and that therefore all the proceedings in that action, and all those which followed to enforce the judgment obtained therein, were void. The prominent place in the defendant's brief is given to an attempt to support the proposition that, whatever be regarded as James Doolan's legal status, the legal proceedings resulting in the foreclosure of the judgment lien were effective as a sequestration to satisfy the present defendant's claim against her brother, of the real estate in question, through a quasi judgment in rem under the provisions of statute. It is quite unnecessary to discuss the above claim of the plaintiff, involving, as it incidentally does, a number of important considerations, since within the purview of the defendant's chief contention is found a situation, created at the very iuception of the legal proceedings, which stamps the whole of them as altogether void. Instead of resulting in a lawful appropriation of James Doolan's estate, regardless of whether he was living or dead, as claimed, it is clear that they were of no effect, and that James' known existence could not have imparted any life to them. They are all dependent for their vitality upon the jurisdiction of the court of common pleas of the original action, and its rendition in that action of a valid judgment, either general or qualified. When that action was brought, James' whereabouts, if he was alive, were unknown. He had no known place of abode in this state, and had not had one for 13 years. He was therefore not a resident. Earle v. McVeigh, 91 U. S. 503, 23 L. Ed. 368. He was sued and served as a nonresident, being described as of parts unknown. Of necessity, therefore, neither personal service, nor service at his usual place of abode, was or could have been made upon him. Earle v. McVeigh, supra. Appearance for him was not made. As a consequence, the court never acquired jurisdiction over James personally, and was powerless to render a general personal judgment against him. Numerous authorities in this state and elsewhere have placed this conclusion beyond the domain of doubt, and the defendant frankly concedes it. Starr v. Scott, S Conn. 484; Easterly v. Goodwin, 35 Conn. 273; O'Sullivan v. Overton, 56 Conn. 103, 14 Atl. 300; Williams Co. v. Mairs, 72 Conn. 430, 44 Atl. 729; Cooper v. Reynolds. 10 Wall. 317, 19 L. Ed. 931; Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565.

It follows that the court acquired no jurisdiction, unless by virtue of an attachment of property. See cases last cited. An attempt to make such an attachment appears upon the record. This attempt related to certain real estate in Ansonia standing in the name of James Doolan, and owned by him at the time of his disappearance. The return shows that the officer serving the process lodged in the office of the town clerk a certificate of attachment in due form, and thereafter on the same day left a true and attested copy of the writ, with his indorsement thereon, "at the last usual place of abode of the defendant in Ansonia." The finding discloses that the place where this copy was left was the house of the plaintiff in the action, to wit, Elizabeth Doolan, which house had been James' place of residence prior to his disappearance. It only remains to inquire whether this action by the officer created a valid attachment of the real estate described in the certificate of attachment. It is apparent that the officer proceeded as he would in attaching the real estate of a resident defendant. Our statutes (section 828, Rev. St. 1902) provide, and then provided (section 910, Rev. St. 1888), a special procedure for the attachment of estate within this state belonging to defendants not residing within the state. This statute is and was exclusive....