Scott v. Noble

The opinion of the court was delivered, by Read, J. — This case was rightly decided by the learned judge in the court below. , Joseph Graftan and Theodore Noble, copartners, under the name of Graftan & Noble, of Cleveland, Ohio, gave their promissory note to Martin B. Scott, of the same place, dated November 18th 1842, payable one day after date¡ On this note Martin B. Scott commenced suit in the Court of Common Pleas in Boston, Massachusetts. The writ was directed to the sheriff, who was commanded to attach goods or estate of defendants, and for want thereof to take the bodies of said Graftan and Noble, and have them before the justices of the said court. The sheriff returned that he had attached a chip as the property of Graftan, and left a summons for him at his last and usual place of abode in Boston, to appear in court, and September 17th 1844, he returned that Theodore Noble was not a resident of his precinct, and had no known agent, and could not he served. Upon the affidavit of Graftan, this action was removed to the Supreme' [120] Judicial Court at Boston. Graftan appeared, and in March Term 1845, on motion of the plaintiff Scott, it appearing by inspection of the record, that defendant Noble was not an inhabitant of the Commonwealth nor resident therein at the time of the service of the writ, and had no place of abode or agent therein, and that no personal service of the writ has been made upon him, the court ordered the plaintiff to give notice to defendant Noble of the pendency of the action, by serving him with a true and attested copy of the order that'he might appear and show cause why judgment should not be rendered against him in this action. On an attested copy appears this endorsement: “ I accept service of the within writ, Theodore Noble,” he then living in Pennsylvania. On the 12th May 1846, judgment was entered against Joseph Graftan and Theodore Noble, in default of an appearance, for $6363.26 damages and costs of suit, &c. The present suit is upon this judgment. It was a valid judgment against Graftan, but not against Noble, who was not a citizen or inhabitant of Massachusetts; had no estate or property therein, nor was at any time before or during the pendency of the suit within the state. In Reel v. Elder, 12 P. F. Smith 315, my brother Sharswood says: “ Nor did the evidence given of the notice of the pendency of the proceeding, admitting that it was served on the plaintiff, make any difference; for in the language of the opinion (by Justice Agnew) in Colvin v. Reed, 5 P. F. Smith 375, ‘ back of it lies the want of power of the distant state to subject her to its jurisdiction’ — clearly when it is once determined that a court has no jurisdiction. Notice, or even process duly served, cannot give vitality to the judgment it may pronounce. It is null and void, at least as to any extra-territorial effect.” In addition to the authorities cited by the learned judge in the court below, Judge Eletcher said in Phelps v. Brewer, 9 Cushing 395 : “ It is a matter too well settled to admit of discussion, that when a party is not within the jurisdiction, and is not served with process, and does not voluntarily appear to answer to the suit, by himself or his attorney, the judgment cannot be enforced against him out of the local jurisdiction. This point has been fully and repeatedly decided by this court, and since the institution of this suit has been directly adjudged by the Supreme Court of the United States.” In Bischoff v. Wethered, 9 Wall. 312, in a count on 'a judgment in the Court of Common Pleas at Westminster Hall, in England, the evidence was an exemplified copy of a judgment recovered against the defendant in the said Common Pleas, without any service of process on him, or any notice of the suit, other than a personal notice served in the city of Baltimore, Mr. Justice Bradley said, “ as to the first point raised, to wit, the effect of the proceeding in the Common Pleas, Westminster Hall, it is enough to say that it was wholly without jurisdiction of the person, [121] and whatever validity it may have in England, by virtue of statute law against the property of the defendant there situate, it can have no validity here even of a primá. facie character. It is simply null.” Judgment affirmed.