Latimer v. Union Pacific Railway

Wagner, Judge, delivered the opinion of the court. This was a suit brought upon a judgment rendered in the Supreme Court of the State of New York against the defendant, a corporation created under the laws of Kansas. The answer denied th&it there was any judgment that was binding on the defendant. It appears from the transcript that service of the summons was had upon Adolphus Meier, one of the directors of the corporation, whilst he was temporarily in the city of New York. There was no appearance at the return term, and judgment was taken by default. [109] It is alleged that the cause of action arose in that State, and that the service was good under the code of procedure in relation to the service of writs, which provides that 11 If the suit be against a corporation, the service shall be to the president or other head of the corporation, secretary, cashier, treasurer, a director, or managing- agent thereof; but such service can be made in respect to a foreign corporation only when it has property within this State, or the cause of action arose therein, or when such service shall be made within this State, personally, upon the president, treasurer, or secretary thereof.” The well-established and settled principle is, that to give a court jurisdiction, a real defendant, against whom the plaintiff is entitled to a judgment, must be found and served with process within the limits of the jurisdiction ; or some property or chose in action of his must be found there upon which the court can proceed in rem. Every attempt on the part of one nation or State, by its legislature, to grant jurisdiction to its courts over persons or property not within the territory, is regarded elsewhere as mere usurpation; and all judicial proceedings' in virtue thereof are held utterly void. This proceeds upon the known maxim, “Extra territorium jus dicenti impune non paretur.” (Story Oonfl. Laws, § 539.) As regards actions in the nature of proceedings in rem, there is very little difficulty. To enforce any right of action against' property, either real or personal, it must be within the jurisdiction or possession of the tribunal assuming to give judgment against it. (Rose v. Himcley, 4 Cranch, 241.) Of this description may be cited the action of attachment. Where the proceedings by attachment terminate in a judgment against the person of the defendant, they rest upon the same grounds as other actions in personam, and must disclose the same kind of service of process. If there is a failure in this, the judgment will not be recognized in other jurisdictions as extending beyond the property actually seized or levied upon; and hence, a personal judgment obtained in a sister State, upon notice to the defendant by publication, only, there being no appearance of the defendant, will be deemed null and void outside the State in which it was rendered, and will support [110] no action here. (Winston v. Taylor, 28 Mo. 82, and cases there cited.) The authorities all concur in denying jurisdiction in actions in personam over non-resident foreigners upon any thing short of actual notice given within the territorial limits of the forum, or voluntary appearance there. In the case of D’Arcy v. Ketchum, 11 How. U. S. 165, it appeared that a judgment had been rendered in the State of New York in favor of Ketchum against Gossip and D’Arcy, upon a partnership note of theirs. There was personal service on Gossip, and no service on D’Arcy, who Was an inhabitant of Louisiana. Judgment was rendered against him in accordance with a New York statute which provided that where joint debtors were sued, and one of them was brought into court, judgment should go against the others in like manner as if they were served with process, tho service of process upon one being regarded as constructive service upon the rest. An action upon this judgment was brought in the Circuit Court of the United States against D’Arcy. The court held that under the act of May 26, 1790, the record was entitled to full faith and credit, and gave judgment accordingly. This judgment of the Circuit Court was reversed in the Supreme Court on appeal, where it was held that the courts of New York acquired no jurisdiction over D’Arcy; and that, not being a citizen or inhabitant of that State, he could not be affected by laws to which he was not amenable. The question‘which arises here seems to be well settled in New York, and the courts there have given the statute a practical construction. In Hurlbert v. Hope Mutual Insurance Company, 4 How Pr. 275, it is decided* after great consideration in a well-reasoned opinion, that the service of a summons upon a president of a foreign corporation, who happens to be temporarily in that State, and who does not voluntarily appear to the action, does not give the court jurisdiction of the corporation for the purpose of rendering personal judgment upon contracts made in the State, or for debts due to residents of the State — such notice being simply regarded, for all practical purposes, as a statutory notice that [111] proceedings are about to be instituted against the property of the defendant, and that an action against a foreign corporation is to be deemed a proceeding against its property only, unless there is a voluntary appearance. In other words, it amounts to constructive notice only against the foreign corporation, and is a substitute for notice by publication. The same doctrine is repeated and affirmed in Brewster v. The Michigan Central Railroad Company, 5 How. Pr. 183. And in the very case mostly relied on by the plaintiff in error it is distinctly stated that th6 section of the code (§ 134) authorizing the service of the summons on the president, etc., of a corporation, is merely a substitution of that mode for service by publication, as provided in another section. (Bates v. New Orleans, etc., R.R. Co., 13 How. Pr. 576.) The proceeding in this case was strictly in personam. It does, not appear that the defendant had any property in the State of New York; and, if it had, no effort was made to subject it to the jurisdiction of the court. This being the case, and as there was no voluntary appearance of the defendant, the service of process on Meier was ineffective, and the judgment must' be held null and void. Judgment affirmed. The other judges concur.