Ward v. Boyce

• Decision Date: 02 March 1897
• Citation: 152 N.Y. 191,46 N.E. 180
• Parties: WARD v. BOYCE.
• Court: New York Court of Appeals Court of Appeals

152 N.Y. 191

46 N.E. 180

WARD

v.BOYCE.

Court of Appeals of New York.

March 2, 1897.

Appeal from supreme court, general term, Third department.

Action by Mary E. Ward against George B. Boyce. From a judgment of the general term (30 N. Y. Supp.) 491), affirming a judgment for plaintiff, entered on the decision of the trial judge without a jury, defendant appeals. Affirmed.

J. Sanford Potter, for appellant.

O. F. Davis, for respondent.

O'BRIEN, J.

This appeal involves a very small sum of money, but legal principles of great importance. The action was on a promissory note of $150, made by the defendant, payable to the order of the plaintiff one day after date, which was September 4, 1893. The defendant, by his answer, put in issue the allegation of the complaint that the plaintiff was owner of the note, and set forth certain proceedings in a justice's court in the state of Vermont, commenced by what is called ‘trustee process' in that state, against the plaintiff's husband and the defendant, by one Herrick, claiming to be a creditor of the husband. It is alleged that in that proceeding, to which the plaintiff was made a party, it was adjudged by a court of competent jurisdiction, proceeding under and according to the laws of that state, that the note in suit was not the property of the plaintiff, but of her husband, and that this defendant should pay the amount to Herrick, the husband's creditor, in satisfaction of his claim or judgment pro tanto. On the trial of this action the plaintiff produced the note, the execution of which was admitted, and this established the fact, prima facie, that the plaintiff was the owner and holder thereof. The defendant then gave in evidence the record of proceedings in the justice's court in Vermont and the statute law of that state which it was claimed authorized the proceeding. It appears also, or was admitted, that the plaintiff and her husband resided, when the note was given and several years before, and at the time of the trial, in Washington county, in this state, and the defendant in the state of Vermont. The issues in the case were tried by the court without a jury, and it was found, among other things, that the plaintiff was the owner and holder of the note. The proceedings under the trustee process in Vermont, as they appeared by the record, were also found, and certain sections of the statutes of that state under which the proceedings were had appear in the findings. The court gave judgment for the plaintiff, and the general term affirmed the decision (30 N. Y. Supp. 491), but allowed the defendant to appeal to this court (31 N. Y. Supp. 1135).

It is important at the outset to know and bear in mind what the issue between the parties was. It was not that the note had been paid or discharged or merged in the judgment in Vermont, but that the plaintiff was not the owner. The issue was therefore one of fact, or perhaps presented a mixed question of law and fact. The plaintiff met this issue by the production of the note at the trial, and the defendant by the production of the record. If the record adjudged the fact the plaintiff was not the owner of the note, but that some one else was, and the plaintiff was a party to that suit, and the proceedings were of such a character as to bind the plaintiff in another jurisdiction and in another action, it might be difficult to sustain this judgment. The real question was whether the record was conclusive evidence in favor of the defendant of the disputed fact, viz. that the plaintiff owned the note.

There are some propositions growing out of the general question so familiar and elementary that they may be assumed without argument. The record of a former judgment between the same parties, in which the same question was involved and determined, is a bar or conclusive evidence in a subsequent action upon the question so involved and decided; but it must appear that the court in the first action had jurisdiction. The judgment of a court of a siste state, recovered upon trustee process or attachment proceedings, in which the defendant is not personally served with process, and does not appear, is effectual only to bind such property of the debtor as is found within the jurisdiction. It can form no basis for a personal judgment, and cannot affect the title of property not seized or attached, and not within the jurisdiction of the sovereignty where the proceedings are had. A party cannot be deprived of property without ‘due processof law,’ and that term, in its application to judicial proceedings, means a course of legal proceedings according to those rules and principles which have been established by our jurisprudence for the protection and enforcement of private rights. If the proceedings involve the determination of the personal liability of the defendant, he must be brought within the jurisdiction by service of process within the state or voluntary appearance. If it be a proceeding in rem, the res must have been seized or attached, or at least must be within the jurisdiction. Reynolds v. Stockton, 140 U. S. 254, 11 Sup. Ct. 773;Carpenter v. Strange, 141 U. S. 87, 11 Sup. Ct. 960;Louis v. Brown Tp., 109 U. S. 162, 3 Sup. Ct. 92;Cromwell v. County of Sac, 94 U. S. 351; Russell v. Place, Id. 606; Windsor v. McVeigh, 93 U. S. 274;Pennoyer v. Neff, 95 U. S. 714;Perry v. Dickerson, 85 N. Y. 345;Paper Co. v. O'Dougherty, 81 N. Y. 474;Durant v. Abendroth, 97 N. Y. 132. The proceedings in Vermont were substantially in accordance with the statutes of that state. It is not enough, however, to show that the judgment was authorized by statute. In order to entitled it to full faith and credit in another jurisdiction, it must appear that the statute contemplated a judicial proceeding in conformity with the principles above stated.

It will be necessary to examine the proceedings had in the justice's court in Vermont with some detail, in order to see whether the judgment rendered is of such a character, and based upon such proceedings, as to make it conclusive upon the plaintiff in this action upon the question of fact which was in issue. On the 19th of September, 1893, less than three months after the note in question was made and delivered, a justice of the peace at Poultney, in Vermont, issued his summons directed to any constable in the state, commanding him to attach the goods of Eugene Ward, the plaintiff's husband, to the value of $200, and to notify him to appear before the said justice, at that place, on the 2d day of October following, to answer to Alonzo Herrick in a plea of the case, for that the defendant was indebted to the plaintiff in the sum of $200 for money had and received; and the constable was also directed to summon George B. Boyce, the defendant in this action, trustee of said Eugene Ward, to appear at the same time and place, to make disclosure, according to law, of the goods, rights, and credits of the said defendant, in his hands or possession. There does not appear to have been any proof before the justice when this process was issued, or any proof required by statute, of the important fact that Boyce was, in fact, the trustee of the debtor, or had any rights or credits in his hands subject to attachment or trustee process. That was assumed without any proof, so far as appears. The process described the husband, the principal defendant and debtor, as a resident of the state of New York, and the plaintiff and the alleged trustee as residents of Vermont. A constable made return to the justice, in writing, that on the 19th day of September, 1893, he served the writ personally on the trustee, and that he served it on Ward the same day, by delivering a copy to the trustee, said Ward being a nonresident of the state, with a list of the property attached. There is nothing in the return of the constable to show that he had, in fact, attached any property whatever. On the 2d of October, the return day of this process, the plaintiff appeared, and, as it appeared to the justice that the defendant was out of the state, the cause was continued to October 9th thereafter. On the adjourned day the plaintiff again appeared, and, as the record states, ‘the defendant, being three times solemnly called, doth not come but thereof makes default,’ judgment was entered in favor of the plaintiff, and against the defendant, Ward, for $172.45 damages and $4.24 costs.

This judgment is the foundation of the whole proceeding, and the only evidence that Ward was indebted to Herrick in any sum whatever. It will be seen that there was no service of process of any kind upon the nonresident defendant. The constable, it is true, states that he served Ward by serving on Boyce, his trustee, but there was nothing to show that he was such trustee in fact, and hence the service might just as well have been made upon any other citizen of Vermont, if the constable took care to describe him as a trustee. This is the only way that the justice got jurisdiction of the case. Up to this time there does not appear to have been the slightest proof that the defendant had any property within the state, or any credits in the hands of any one, or that the alleged trustee played any part in the proceeding. But, the judgment being rendered, the record states that he appeared in court and made the disclosure that he was summoned to make, and this he did by an affidavit taken before another officer, in which he stated that he was the trustee summoned in the case; that on the 4th of September, 1893, he gave the plaintiff the note in this suit; that it was given for cattle sold to him by the plaintiff, or in her name; that her husband was present at the sale; that the note was unpaid; that he had not at the time of the service of the writ, nor since, any goods, chattels, or credits of the defendant in him hands or possession, and he asked that, before judgment was rendered against him, the plaintiff in this action, who held the note, be cited to appear as cl...