Plummer v. Hatton

53 N.W. 460, 51 Minn. 181, 1892 Minn. LEXIS 37

• Court: Supreme Court of Minnesota
• Decided: October 29, 1892
• Status: Published

Opinion

Mitchell, J.

In an action to enforce a pecuniary liability against a nonresident, where process is constructively served by publication, and he does not voluntarily appear, the proceedings, although in form in personam, are, in effect, in rem. It is only by attaching-property that the court acquires jurisdiction, and then only to the-extent of the property attached. The judgment'in such a case would have no effect beyond the property attached. No general execution could be issued for any balance unpaid after the attached property is exhausted. No suit could be maintained on such a judgment, nor could it be used as evidence in any other proceeding not affecting ■ the attached property. The original cause of action would not be-merged in it. Any future suit to recover any balance due after the-attached property is exhausted would have to be brought on the original cause of action. It follows that, if no property is attached, the-court acquires no jurisdiction, — there is nothing upon which it can act, — and any judgment that might be rendered would be an absolute nullity. Kenney v. Goergen, 36 Minn. 190, (31 N. W. Rep. 210;) Cooper v. Reynolds, 10 Wall. 308.

It affirmatively appears on the face of the record that such were the facts in the action before the justice of the peace in Northfield. It follows that the judgment in that case was void, and constitutes: no bar to another suit on the same cause of action. 1878 G. S. ch. 65, § 75, which is merely a rule of evidence, has no bearing upon the case.

Order affirmed.

(Opinion published 53 N. W. Rep. 460.)