Fenton v. Garlick

8 Johns. 194

• Court: New York Supreme Court
• Decided: August 15, 1811
• Status: Published

Opinion

Per Curiam.

This was an action of debt on a judgment obtained in Vermont against the defendant, as trustee of Samuel Garlick. The judgment was in the nature of one founded on the suggestion of a devastavit committed by the defendant, in the character of trustee, and against such a charge he was entitled to be heard. The mere fact of his having formerly had assets or moneys of Samuel Garlick in his hands, was not sufficient to authorize a judgment against his own property, in his individual capacity, until opportunity had been given to him to show in what manner he had disposed of those assets. This opportunity he has never had; for, at the time he was called upon to show cause, by a rule in the nature of a writ of scire facias, he resided in this state, and the service of that rule upon him, while within this state, (which fact was admitted,) was void, not only upon general principles, but by the express words of our statute, passed the 10th of August, 1798. (Sess. 22. c. 3.) The judgment consequent upon such a service cannot be regarded by this court as the ground of a suit; nor will an action be sustained upon a judgment obtained in another state against an inhabitant of this state, without any personal summons or sendee of process. This was so decided in Kilburn v. Woodworth, (3 Johns. Rep. 37.) and in Robinson v. Executors of Ward. (Ante, 86.) The proceeding against the defendant, as trustee, in the year 1803, was not notice of any proceeding upon which this judgment was obtained, any more than a proceeding, in the first instance, against an executor or administrator, would be sufficient to warrant a judgment founded on a devastavit. The original suit, in both cases, is rather a proceeding in rem, than in personam. It is against the assets in the hands of the executor or trustee, belonging to the party whom they represent, and there must be a new suit, or a notice which is equivalent to it, before the trustee can be charged in his own private property or person, as for a breach of trust. There was no such new suit or notice to warrant the judgment in this case; and, consequently, no action can be sustained upon it in this state. Agreeably to the stipulation of the parties, a judgment of nonsuit must be entered.

Judgment of nonsuit.