Noble v. Thompson Oil Co.

• Decision Date: 06 January 1876
• Citation: 79 Pa. 354
• Parties: Noble <I>et al. versus</I> The Thompson Oil Co. to the use of Brown <I>et al.</I>
• Court: Pennsylvania Supreme Court

Page 354

79 Pa. 354

Noble et al. versus The Thompson Oil Co. to the use of Brown et al.

Supreme Court of Pennsylvania.

October 18, 1875.

January 6, 1876.

October 18th 1875.

Before AGNEW, C. J., SHARSWOOD, WILLIAMS, MERCUR, GORDON, PAXSON and WOODWARD, JJ.

Error to the Court of Common Pleas of Erie county: Of October and November Term 1874, No. 188.

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G. Shiras and J. Fallon, for plaintiffs in error.—One compelled by a competent jurisdiction to pay a debt, cannot be compelled to pay it again: Embree v. Hanna, 5 Johns. R. 101; Noble v. Thompson Oil Company, 19 P. F. Smith 410. The only reply to a plea of a record of another state is nul tiel record: 1 Coke Lit. 260; Benton v. Burgot, 10 S. & R. 240; Morris v. Galbraith, 8 Watts 166; Clark v. M'Comman, 7 W. & S. 469. Oyer is not demandable of a record: 1 Troubat & Haley 421 (363); Stephens on Pleading 102. The situs of a debt is not the residence of the creditor. Personal property has no locality and is distributable according to the jus domicilii of the owner: Birtwhistle v. Vardill, 5 B. & C. 438; Story's Conflct of Laws, sect. 380; Sill v. Worswick, 1 H. Black. 690. The visible locality of a debt is the residence of the debtor, and the tribunal of that residence may exercise jurisdiction over it in rem: Story's Conflict of Laws, sect. 549, 550; Andrews v. Heriett, 4 Cowen 510, in note; Mills v. Duryee, 7 Cranch 481; Bissell v. Briggs, 9 Mass. 462; Armstrong v. Carson, 2 Dall. 302. Attachment is a proceding in rem, and also against the garnishee personally: Childs v. Digby, 12 Harris 23; Andrews v. Clark, Carthew 25; Morgan v. Neville, 24 P. F. Smith 52; Phillips v. Hunter, 2 H. Black. 402. A garnishee is protected against an equitable assignee claiming under his creditor as he would be against the creditor himself, if defendant in the attachment: Bank of N. America v. McCall, 3 Binn. 338; s. c. 4 Id. 371; Holmes v. Remson, 4 Johns. Ch. 466; Le Chevalier v. Lynch, Douglass 160; Moore v. Spackman, 12 S & R. 287; Anderson v. Young, 9 Harris 443. A claimant to the subject-matter of a judicial controversy between others must make his claim known: Coates v. Roberts, 4 Rawle 110; Heller v. Jones, 4 Binn. 66; Collingwood v. Irwin, 3 Watts 306; Paul v. Witman, 3 W. & S. 409; Govett v. Richmond, 7 Sim. 1; Story's Conflict of Laws, sect. 389-395; Kerr on Frauds 142; Dearle v. Hall, 3 Russ. 1; Lovendge v. Cooper Id. 30; Neilson v. Blight, 1 Johns. Cas. 205; Weston v. Barker, 12 Johns. 276; Warren v. Copelin, 4 Metc. 594; Chase v. Haughton, 16 Verm. 594; Ward v. Morrison, 25 Id. 593; Richards v. Griggs, 14 Mo. 416; Fish v. Weston, 5 Maine 410; Boon v. Staaden, 24 Ill. 320; Green v. Van Buskirk, 7 Wallace 139. The New York Code (Voorhees) provides: — Sect. 111. "Every action must be prosecuted in the name of the real party in interest." Sect. 112. "In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off or other defence existing at the time of, or before notice of the assignment."

J. B. Cessna and J. C. Marshall (with whom was F. F. Marshall,) for defendants in error.—A voluntary assignment of a chose in action valid under the laws of the place where the owner resides is valid everywhere: Kelly v. Craffo, 45 N. Y. 86; Story's Conflict of Laws, sect. 368, 390; People v. Commissioners, 23 N. Y. 254; Guillandet v. Howell, 35 Id. 657; Speed v. May, 5 Harris 94; 2 Kent's Com. 588, sect. 455. The situs of a debt is where the owner is: Story on Conflict of Laws, sect. 399, 411; 2 Kent, sect. 407: Law v. Mills, 6 Harris 185. An assignment of a debt is good against a subsequent attaching creditor, even if no notice of it be given till after the attachment: Stevens v. Stevens, 1 Ashmead 190; Pellman v. Hart, 1 Barr 263. Plaintiff in foreign attachment is in no better situation than his debtor: United States v. Vaughan, 3 Binn. 394; Caskie v. Webster, 4 Wallace 131. The court of the foreign state is bound to give the same effect to the assignment as it has in the state where it was made: Story's Conflict of Laws, sect. 397. The defendants in the attachment having no property at the time of the attachment in the debt, laying the attachment on their debtors in New York, did not give the court there jurisdiction, and by the order to serve the summons on them no jurisdiction was acquired: Penna. Railroad Co. v. Pennock, 1 P. F. Smith 244; Fish v. Anderson, 12 Abbott's Pr. R. 8. In proceedings in rem, unless the court have jurisdiction over the thing, a judgment is not conclusive: Story's Conflict of Laws, sect. 592; 1 Greenl. Ev., sect 542. A court cannot give itself jurisdiction by its own finding, so that its decision cannot be inquired into, to determine its right to decide: Rose v. Himely, 4 Cranch 241; Thompson v. Whitman, Pittsburg Legal Journal, May 3d 1874; Baxley v. Linah, 4 Harris 249; Story on Conflict of Laws, sect. 493-495; Eby's Appeal, 20 P. F. Smith 311; Bissell v. Briggs, 9 Mass. 462; Border v. Fitch, 15 Johns. 121. A plea containing no denial that the property seized was the property of plaintiffs, nor any averment that it was the property of either of the defendants in the attachment, or that it was in any other manner subject to be taken under the writ, is bad: Buck v. Colbath, 3 Wallace 344; Megee v. Beirne, 3 Wright 50. The attachment in New York being a proceeding not in rem, but in personam, is binding only upon parties and privies. The plaintiffs are assignees, claiming by title anterior and paramount to said proceedings, and are not barred or estopped by anything done therein: Bigelow on Estoppel 15, 161, 162; 1 Smith's Lead. Cas. 830; Westoby v. Day, 2 E. & B. 605; Himes v. Remsen, 20 Johns. 229; Perkins v. Parker, 1 Mass. 117; Wood v. Partridge, 11 Id. 488; Hull v. Blake, 13 Id. 158. By the New York Code, sect. 122 (Voorhees), it is provided: "The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in," &c. If parties, they are not brought in; their rights and interests are not affected by the determination of the court: McMahon v. Allen, 12 How. 39; Shaver v. Brainard, 29 Barb. 25; Stuart v. Brewer, 17 How. 571. The interest of a third party or conflicting claims to property cannot be tried in supplementary proceedings: Biddle's Supplementary Proceedings 124, 150, 151; Garder v. Smith, 29 Barb. 68; Voorhees v. Seymour, 26 Id. 585; Rodman v. Henry, 17 N. Y. 482; Hunter v. Blank et al., 50 Id. 806. An assignee is not privy to proceedings had against his assignor, subsequent to assignment: 1 Greenl., sect. 23 and note: Crane v. Morris, 6 Peters 611; Carver v. Jackson 4 Id. 183; Cossens v. Cossens, Willes 25. By the Constitution of the United States, judgment of another state is put upon the same footing as a domestic judgment, with the qualification that it does not prevent an inquiry into the jurisdiction of the court in which the original judgment was given: Baxley v. Linah, 4 Harris 249; Story on Conflict of Laws 493-495; Paschal's Annotated Constitution 214; Steel v. Smith, 7 W. & S. 447; Borden v. Fitch, 15 Johns. 121; Shomway v. Stillman, 4 Cowen 292. When neither the parties nor subject-matter are within the jurisdiction of a court its judgment has no effect: Eby's Appeal, 20 P. F. Smith 311. To such a judgment, sentence or decree, no extra-territorial effect is accorded: Bissell v. Briggs, 9 Mass. 462. Notice of proceedings will not give court jurisdiction; Reed v. Elder, 12 P. F. Smith 308; Pouling v. Wilson, 13 Johns. R. 192; Fenton v. Garlick, 8 Id. 194; Scott v. Noble, 22 P. F. Smith 115. Judgments have not by Act of Congress full power and conclusive effect, but only such effect as they possess in the state whence they were taken: Rogers v. Burns, 3 Casey 526; Snyder v. Barber, 18 N. Y. 648. When a chose in action is bonâ fide assigned it is not subject to attachment, and if judgment is obtained even after appearance of assignor, such judgment is not a bar to assignee's right of recovery: Warren v. Lynch, 5 Johns. R. 239; Van Buskirk v. Warren, 34 Barb. 457; Tams v. Bullitt, 11 Casey 308; Cooser v. Craig, 1 Wash. C. C. R. 424; Glover v. Austin, 6 Pick. 209; Frazier v. Fredericks, 4 Zabriskie 160; Woodburne v. Scarborough, 20 Ohio St. 57. Under the New York Code, sect. 135 (Voorhees), the courts of that state have no jurisdiction to order service of summons on a non-resident defendant by publication unless he has property within the state when the order is made: Fiske v. Anderson, 12 Abbott's Rep. 8. The assignees could not be bound by the proceedings in New York, unless they were brought as parties upon the record: Biddle's Supplementary Proceedings 150; Bostick v. Menck, 40 N. Y. 383; Gardener v. Smith, 29 Barb. 68; Voorhees v. Seymour, 26 Id. 585; Porter v. Williams, 9 N. Y. 150.

The New York Code, sect. 122 (Voorhees), provides: "A defendant against whom an action is pending upon a contract, or for specific real or personal property, may at any time before answer upon affidavit that a person not a party to the action, and without collusion with him, makes against him a demand for the same debt or property, upon due notice to such person, and the adverse party apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount of the debt or delivering the property or its value to such person as the court may direct, and the court may in its discretion make the order."

Mr. Justice MERCUR delivered the opinion of the court, January 6th 1876.

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