Long v. Home Insurance Co.

114 N.C. 465

• Court: Supreme Court of North Carolina
• Decided: February 15, 1894
• Status: Published

Opinion

Clakk, J.:

The finding of the Court below that the appearance of the defendant at August Term was a special appearance is not reviewablc.

The Act of 1891, ch. 120, authorizing service of summons and other process upon a non-resident by an officer of the county and State where he resides, is, as the act expresses it, only “in lieu of publication in a newspaper.” It can only be done in those cases in which publication could be made and has only the effect publication would have, except it may be that when the actual notice is brought Lomo, by such service to a non-resident he has not the right allowed the defendant when publication is made by The Code, §220, to defend after judgment. But as to this we need not decide now.

“Substituted service by publication, or in any other authorized form, may be sufficient to inform parties of the object of ¡H’oo.ecdings taken whore property is once brought under the control of the Court by seizure, or some equivalent act. * * * Such service may also be sufficient in cases where the object of the action is to reach and dispose of property in the State, or of some interest therein, by enforcing a contract or lien respecting the same, or to partition it among different owners, or, when the public is a party, to condemn and appropriate it for a public purpose. In other words, such service may answer in all actions which are substantially proceedings in rem,; * * * process from the tribunals of one State cannot run into another State and summon parlies there domiciled to leave its territory and respond to proceedings against him.” Pennoyer v Neff, 95 U. S., 714, 727; Wilson v. Seligman, 144 U. S., 43, 44. “There is a large class of cases which are not strictly actions in rem, but are frequently spoken of as actions quasi in rem, * * * in which property of nonresidents is attached and held for the discharge of debts due by them to citizens of the State, and actions for the enforcement of mortgages and other liens.” Freeman v. Alderman, 119 U. S., 185; Hornthall v. Burwell, 109 N. C., 10. Where the proceeding is for the enforcement of mortgages or other liens, or the condemnation of a right of way or other- easement, or the partition of realty and the like, the jurisdiction as to non-residents only authorizes a judgment acting upon the property. Where the enforcement of a debt or other personal liability is sought by subjecting property of the non-resident the jurisdiction is based upon the seizure of the property aucl only extends to the property attached. In neither case can any personal judgment-be rendered against the defendant, not even for the costs, nor affecting other property of his even within the State. Winfree v. Bagley, 102 N. C., 515. The act (1891, ch. 120) allowing service of process of this State upon a non-resident where he resides does not and cannot extend the jurisdiction. It is a convenient and probably a more sure way of bringing homo to the non-resident the notice which formerly was made solely by publication. It is optional with the plaintiff which mode he shall use. Mullen v. Canal Co., at this Term. But the service of process in another State is valid only in those cases in which publication of the process would be valid. 22 A. & E. Eve., 137; York v. State, 73 Tex., 651. This is true also in action for divorce. Barton v. Burton, 45 Hun., 68.

In the present case, the action being for the recovery of a debt, publication of summons would have been invalid because there was no attachment of the property of defendant to confer jurisdiction. Winfree v. Bagley, supra. As no publication of summons would have been valid the actual service in another State “in lieu thereof” was equally invalid. The plaintiff declined the leave given him to amend his.proceedings to bring the defendant into court, and the Judge therefore properly dismissed the action.

Not only has the process, issuing from one State, no extra territorial effect when served in another State (except as notice of a proceeding in rem, or quasi in rem, which could be served by publication of the notice), but even in the Federal Courts, whose jurisdiction extends throughout the Union, a personal judgment can be had against a defendant only when sued in the district where he resides. Toland v. Sprague, 12 Pet., 300. A personal judgment against a non-resident can only be obtained in a State Court when he can be found and served with process while in the State (Peabody v. Hamilton, 106 Mass., 217; Smith v. Gibson, 83 Ala., 284), or, if a corporation, by service on its agent there. It should be noted that the statute now (The Code, §347), as amended by chapter 77, Acts 1893, is materially different from the act in force when Wilson v. Manvfactur-ing Co., 88 N. C., 5, was'decided.. An attachment now lies for unliquidated damages arising out of breach of contract or for injury to personal or real property, but not for any other torts, such, for instance, as libel, which was the caúse of action in Winfree v Bagley, supra. No Error.