Rothschild v. Knight

• Citation: 176 Mass. 48,57 N.E. 337
• Parties: ROTHSCHILD et al. v. KNIGHT.
• Decision Date: 16 May 1900
• Court: United States State Supreme Judicial Court of Massachusetts

176 Mass. 48

57 N.E. 337

ROTHSCHILD et al. v. KNIGHT.

Supreme Judicial Court of Massachusetts, Hampden.

May 16, 1900

COUNSEL

T. J. Barry and H. J. Jaquith, for plaintiffs in error.

H. W King, C. M. Rice, and R. A. Knight, for defendant in error.

OPINION

KNOWLTON J.

The proceedings at the hearing were correct. Under our present practice, issues of law and issues of fact may be joined in the pleadings upon a writ of error. Eliot v McCormick, 141 Mass. 194, 6 N.E. 375. A single justice may properly hear all the evidence on the issues of fact and, if he chooses, report the case to the full court.

The questions principally discussed at the argument have been fully considered in recent cases of high authority, and decided adversely to the plaintiffs in error. There was an attachment in due form, by trustee process, of debts due the original defendants from debtors residing in this commonwealth. Pub. St. c. 164, § 1; Id. c. 183, § 1. Such an attachment gives jurisdiction to render a judgment which will be valid everywhere as against the property attached. Ocean Ins. Co. v. Portsmouth Marine Ry. Co., 3 Metc. 420; Folger v. Insurance Co., 99 Mass. 267; Eliot v. McCormick, 144 Mass. 10, 10 N.E. 705; Cooper v. Reynolds, 10 Wall. 308, 19 L.Ed. 931; Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Freeman v. Alderson, 119 U.S. 185, 7 S.Ct. 165, 30 L.Ed. 372; Railway Co. v. Sturm, 174 U.S. 710, 19 S.Ct. 797, 43 L.Ed. 1114; King v. Cross, 175 U.S. 396, 20 S.Ct. 131, Adv. S. U.S. 131, 44 L.Ed. ----; Cross v. Brown, 19 R.I. 220, 33 A. 147.

The plaintiffs in error do not contend that the attachments would not be effectual to give jurisdiction against the property if real estate or specific goods were attached, but their principal contention is that a debt due from a trustee to a nonresident defendant cannot be effectually attached under the statute cited. This contention is answered, as to the law of this commonwealth, by the first two cases cited in the last paragraph. The plaintiffs in error contend that the debts due them from debtors in Massachusetts were not property within this commonwealth, upon the attachment of which jurisdiction could be founded, as against a nonresident on whom no service was made in this state; and they argue taht the situs of the property was in the state of New York, where they resided. It is true that for most purposes the situs of credits follows the creditor, and that their situs for taxation or for administration after the death of the creditor is ordinarily in the place of his domicile; but, so far as the question before us depends upon the situs of the debt, it must be held that the situs, in reference to collection, is in the place where proceedings may be had against the debtor. That which ought to be paid is presumably in the possession of the debtor, wherever he happens to be. The debt can be collected by law only in the place where jurisdiction of the debtor can be obtained. The creditor may come there to collect his debt. The situs of the debt, viewed as his property, follows him thither. The plaintiff in the trustee process represents the creditor's right. The question is where the debt, as property, should be deemed to be situated, in reference to process for collection. Practically, it must be where the debtor is amenable to suit. This is the rule adopted by courts generally in the construction of statutes for the collection of debts by trustee process. Any other construction would leave these statutes ineffectual for the purposes for which they were enacted. In Cross v. Brown, 19 R.I. 220, 33 A. 147, the subject was considered at length, with a citation of the authorities, and this conclusion was reached. In Railway Co. v. Sturm, 174 U.S. 710, 19 S.Ct. 797, 43 L.Ed. 1144, there was a discussion of the subject in reference to constitutional questions, with the same result; and in King v. Cross, ubi supra, affirming the decision of the supreme court of Rhode Island in the same case, under the name of Cross v. Brown, the doctrine was reaffirmed. These cases settled the validity of an attachment by trustee process as the foundation for a judgment against a debt due from the trustee to a nonresident who is not served with process. In the present case, not only was there an attachment effectual to give judisdiction to render the judgment against the defendant, but there was a voluntary general appearance by the original defendants, which gave jurisdiction to render a personal judgment against them. They appeared by duly-authorized attorneys, in the usual way, and contested the case at all stages until judgment was rendered. That such an appearance gives jurisdiction, without reference to service, is familiar law. Pub. St. c. 167, § 82; Wright v. Andrews, 130 Mass. 149; Loomis v. Wadhams, 8 Gray, 557, 561; Eliot v. McCormick, 144 Mass. 10, 10 N.E. 705; Gilman v. Gilman, 126 Mass. 26; Hazard v. Wason, 152 Mass. 268, 25 N.E. 465; Cooper v. Reynolds, 10 Wall. 308, 317, 19 L.Ed. 931; Pennoyer v. Neff, 95 U.S. 714, 723, 731, 733, 24 L.Ed. 565.

Most of the other questions raised are sufficiently answered by Pub St. c. 187, § 3, which is as follows: 'A judgment in a civil action shall not be arrested or reversed for a defect or imperfection in matter...