Bryan v. . University Pub. Co. of N.Y.

Danforth, J. The action is by a judgment-creditor of Mrs. Richardson, against her as debtor, and other defendants, one of whom is Mrs. Wilkinson, and the order of publication recites that the action relates to personal property within the state and in which the then defendants “ have or claim the entire property or income, and that the relief demanded by the plaintiff consists partly in excluding the defendants from any hen upon or interest in it until the plaintiff’s judgment is satisfied.” This statement may bring the case, in terms, but not in spirit, within subdivision 5 of section 438 (Code Civ. Pro.), but that is not necessary to consider, for neither the complaint nor the affidavits on which the order was founded, contain any warrant for such assumption, and the order was sustained against the motion to vacate it upon the sole ground that the defendant was a non-resident of the state. The proceeding was a statutory one, and to give the judge jurisdiction to entertain it, something more than the non-residence of the defendant must appear. A summons is issued as the first step towards the commencement of an action, and this signifies in the Code (§ 3333) an ordinary prosecution by one party against another party for the enforcement or protection of a right, or the redress or prevention of a wrong. The service of the summons is the commencement of the action. It can be made, as of course, upon a defendant within the state. It can he served upon a non-resident within the state, or *386 by publication, only, by direction of a judge, but Ms order must be founded not only upon an affidavit showing the non-residence, but also upon a verified complaint showing a sufficient cause of action against the defendant to be served. fCode of Civ. Pro. § 439.) Under the former Code (§ 135), it was enough to present the judge with an affidavit disclosing to him a cause of action against the defendant, and he was then authorized to make the order for publication in certain specified cases, and, among others, (1) “when the defendant is a foreign corporation and has property within the state, or the cause of action arose therein; (2) where the defendant is not a resident of the state, but has property therein, and the court has jurisdiction of the subject of the action.” These qualifying words are omitted in the Code of Civil Procedure, but that act, as is above stated, requires the complaint to show a sufficient cause of action.” That condition stands M the place of the special cases enumerated in the former Code and can require nothing less, for, unless a cause of action arises within the state, or the defendant has property therein, and the court has jurisdiction over the subject of the action, neither the person nor property of a defendant could be affected by any judgment the court might render. He could neither be punished for contempt in failing to obey its order, nor Ms estate be sold by reason of it. The jurisdiction of the court is limited by the boundaries of the state, and its process could not go beyond them. The facts, therefore, constituting a valid claim against the defendant must be stated, and it must also appear that the case is one of which the court can take cognizance. Here notMng appears to be withm its jurisdiction. So far as the appellant is concerned the subject of the action is in Hassachussetts. She is alleged to be the assignee of certain copyrights, an intangible species of property, as the name implies (Stevens v. Gladding, 17 How. [U. S.] 450), acquired by compliance with conditions imposed by statute (U. S. R. S. §§ 4956, 4962) to be performed at the office of the librarian of congress, and consisting" merely of the exclusive privilege of printing, *387 publishing and selling books or other compositions, a privilege abiding with the person by whom it was originally secured, or her assignee. (U. S. E. S. §§ 4952, 4955, 4971.) She resides in Massachusetts, and, for aught that appears, always has resided there. Nothing has taken place in this state and no one is here to be affected by any judgment the courts of the state can make. If the court directs the assignment to be canceled, how is its order to be made effective ? or appoints a receiver, what power will he possess over the defendant appellant? or requires her to account for money received? Neither order could be enforced. Moreover, the complaint while it shows the issuing of an execution against the debtor while a resident of this state, also shows that at some time thereafter, and before the issuing of the other execution alleged in the complaint, she left the state and became with her husband “ a resident of the state of Massachusetts, with the intent of defrauding and delaying the plaintiff in the collection of the said indebtedness,” and still resides there. It then alleges the assignment of the copyright to Mrs. Wilkinson with intent to defraud the plaintiff, and the collection of royalties by her and payment of them to Mrs. Eichardson, with like intent. The action is to reach the copyright and have an accounting for those royalties as the juoperty of Mrs. Eichardson, and is within the Code, which gives to the creditor an action against his debtor and any other person, to compel the discovery of any tiling in action or other property belonging to the judgment-debtor, or held in trust for him. (Code of Civ. Pro. § 1871.) As the transaction sought to be undone is illegal, the action is founded on a wrong by Mrs. Wilkinson in receiving the property for an unlawful purpose and to the plaintiff’s injury, and for this the latter seeks a remedy. Her right as a creditor to that property is the right she desires to enforce. It is plain that the right accrued, and, therefore, the cause of action arose when and where the defendant was guilty of the wrong charged upon her, and that is when and where she stands as a shelter to the debtor, and claims and exercises rights *388 of ownership under an instrument executed and received in fraud of the rights of a creditor. If the allegation in the complaint is true, that is the position, and that is the wrong practiced by the defendant. It is her duty to give up the property to be applied upon the debt, and the enforcement of that duty gives the cause of action. But these things did not happen in this state, nor are the interests or property here. The court can give no relief, and the impropriety of issuing an order which, if it leads to a judgment, “ would operate on nothing in the state and be regarded by nobody out of it,” becomes apjiarent. It offends every principle by which the jurisdiction of a court can be vindicated, and should not be allowed to stand. Clarke v. Boreel (21 Hun, 594) is cited by the respondent as opposed to these views. It seems to have no application. The action was for the recovery of damages for injuries to the person of a citizen, caused in this state by the negligence of the defendant. The court held that the cause of action arose in the state; that it had jurisdiction over it; that the defendant might perhaps appear and thus jurisdiction of the person of the defendant be added to jurisdiction of the subject-matter; and in the then condition of the proceedings they regarded the motion as premature and gave the plaintiff the benefit of the experiment. That decision is not here for review. In the complaint before us no case is made giving jurisdiction to the courts of this state over the subject of the action or its cause, and the defendant is entitled to make the motion rather than submit to the hardship of coming into this state to defend the action. The orders of the General and Special Terms are, therefore, reversed and the motion to vacate the order of publication granted, with costs in all courts and ten dollars costs of motion.