Smith v. McCutchen

• Decision Date: 31 July 1866
• Citation: 38 Mo. 415
• Parties: CHAS. B. SMITH, Defendant in Error, v. JOHN M. MCCUTCHEN, GARNISHEE OF DANIEL OGLE, Plaintiff in Error.
• Court: Missouri Supreme Court

38 Mo. 415

CHAS. B. SMITH, Defendant in Error,

v.JOHN M. MCCUTCHEN, GARNISHEE OF DANIEL OGLE, Plaintiff in Error.

Supreme Court of Missouri.

July Term, 1866.

Error to Cooper Circuit Court.

EWING, Judge, delivered the opinion of the court.

Smith obtained judgment against Ogle in the Common Pleas Court on a mere order of publication published in a newspaper, Ogle being a non-resident of the State. The judgment was a general judgment in personam. Execution was issued from the Cooper Circuit Court (to which, in the repeal of the law establishing the Common Pleas Court, all judgments were transferred), and McCutchen, being garnished as Ogle's debtor, filed a motion to quash the execution and dismiss the garnishment; which was overruled. An answer was then filed by McCutchen to the interrogatories, admitting indebtedness, but denying the plaintiff's right to recover, on the ground (alleged in his motion) that the judgment was a nullity as being rendered, without notice or appearance, on an order of publication; and an issue being made on the answer, and these facts being admitted, the court gave this instruction:

“That although the said judgment was rendered upon a mere order of publication published in a newspaper, or without any appearance or defence by Ogle, and without any writ or other process having been served upon him; and although he was a non-resident of Missouri, and was not in the State during the pendency of the proceedings against him, yet said judgment and execution were and are valid, and the garnishee (McCutchen) is liable upon the garnishment;” and refused a counter-declaration asked by the defendant, to which he excepted. There was a finding and judgment for plaintiff; and a motion for a new trial being overruled, the defendant brings the trial here by writ of error.

This declaration of law assumes the extra-territorial force of the statute of this State upon which the plaintiff relies, and that it is operative through a judicial proceeding in personam alike upon residents and nonresidents; that the jurisdiction of our courts, as it respects the latter, is not derived merely from the existence of property of such non-residents within the State, but may be exercised without any such restriction and valid judgments rendered against them in personam upon publication merely.

No sovereignty can extend its powers beyond its own territorial limits to subject either persons or property to its judicial decisions. Jurisdiction must be founded either upon the person of the defendant being within the territory of the sovereign where ...