Smith v. Grady

31 N.W. 477, 68 Wis. 215, 1887 Wisc. LEXIS 56

• Court: Wisconsin Supreme Court
• Decided: February 1, 1887
• Status: Published

Opinion

Lyon, J.

I. The only question which the first appeal herein presents for determination is, Did the service of process in this state upon Patrick O’Donnel, the defendant’s testator, give the Ontario court jurisdiction of his person, so as to make valid its personal judgment against him, based entirely upon such service? Whatever validity such judgment may have in Ontario or Canada under the laws of that province or dominion, in this country the authorities are very uniform that a personal judgment, founded alone upon service of process in another state or foreign country, is void. Many of the cases which so hold are cited in the brief of counsel for the defendant. Of these McEwan v. Zimmer, 38 Mich. 765, is worthy of special notice. See, also, Bischoff v. Wethered, 9 Wall. 812.

But it is not necessary to look elsewhere- for doctrine or authority on this question, for this court ruled upon the subject many years ago, in Jarvis v. Barrett, 14 Wis. 591. The question was there settled, and further discussion of it foreclosed, in the following terms: “ It is a universally acknowledged principle that jurisdiction cannot be acquired or exercised over persons or property without the territorial limits of the government where the court sits, and that the legislature possesses no power to grant it. It can- only be obtained of persons and property within the territory so as to be subjected to the process of the court. Jurisdiction of a defendant cannot be acquired so as to bind him personally, except by his voluntary appearance, or by due service of process within the state; and service out of the state is utterly nugatory and void for that purpose.”

The claim against the estate of the testator being upon the void judgment alone, it was properly disallowed both by the county and circuit courts.

By the Court.— The judgment of the circuit court is affirmed.

II. On the second appeal but little need be said. The plaintiffs (or, what* is the same thing, their attorneys) seem to have had great faith in the validity of the Ontario judgment, and have pursued their claim thereon against the estate of O’Donnel with great diligence and vigor until the present time. ¥e do not think it should be regarded as unpardonable laches on their part that they failed to file a claim founded upon the original demand before the time limited by the court in the first instance for the presentation of claims, had expired. It would be an anomaly were a claimant to present together a claim against an estate on a simple contract debt, and one oh a judgment for such debt. It is only after the judgment is declared invalid that the creditor can properly proceed upon the original demand. And he is not justly subject to punishment or censure if he brings the question of the validity of his judgment to this court for final determination.

"Within due time after the county-court held the Ontario judgment invalid, the plaintiffs made their application to that court to extend the time for creditors to present claims against the estate, to the end. that they might present a claim based upon their original demand against O’Donnel. We see no good reason why the application was not granted. It is equitable and just that the plaintiffs should have the relief prayed, and in refusing it we think the county court went beyond the limits of a sound and just discretion.

See note to this case in 31 N. W. Rep. 478.— Rep.

For these reasons the order of the circuit court appealed from must be reversed, with directions to that court to reverse the order of the county court denying the application for an extension of time to present claims against the estate of O’Donnel, and to direct that court to give the plaintiffs an' opportunity so to present their claim.

By the Court.— It is so ordered.