Kilburn v. Woodworth

5 Johns. 37

• Court: New York Supreme Court
• Decided: November 15, 1809
• Status: Published

Opinion

Per Curiam.

The nonsuit was properly directed. The defendant was not a resident of Massachusetts, when the Suit was commenced ; his domicil was in this state, and being in person here, and not within the jurisdiction of the court in Massachusetts, he was not, and could not have been served with process. The attachment of an article of his property could not bind him ; it could only bind the goods attached, as a proceeding in rém, and the judgment obtained by default, in pursuance of such an attachment, cannot be the ground here of an action against the defendant. To bind a defendant personally by a judgment when he was never personally summoned, or had notice of the proceeding, would be contrary to the first principles of justice. So it was decided in Fisher v. Lane. (3 Wils. 297.) In the case of Phelps v. Holker, (1 Dallas, 261.) a judgment obtained under the like proceeding, was held in Pennsylvania, not to be binding and conclusive; and in the case of Kibbe v. Kibbe, (Kirby, 119.) the supreme court of Connecticut went further, and denied operation to a judgment so obtained in Massachusetts. The English courts have established the same rule. In Buchanan v. Rucker, (9 East, 192.) the court of K. B. declared that the law would not raise an assumpsit, upon a judgment obtained in the island of Tobago, by default, when it appeared on the face of the proceedings, that the defendant was not in the island, when the suit was commenced ; and that he had been summoned by nailing a copy of the declaration on the court-house door. The court there said that it would have made no alteration in the case, if such proceedings were admitted to have been valid by the laws of Tobago. The motion to set aside the nonsuit mtyjt be denied.

Judgment of nonsuit».