
    George Arndt vs. Christian J. Arndt.
    A judgment rendered in tlie Court of Common Pleas of Pennsylvania, when the service is upon land only, and the defendant never within that State, is not prima facie evidence of debt in Ohio. • *
    Such judgment binds the property seized, but beyond this, is a nullity.
    The same faith, credit and effect will be given here to a judgment pronounced in Pennsylvania that it has by law or usage there.
    This Action is in Debt, reserved in the County of Fairfield.
    ■ The action is founded on a judgment of the Court of Common Pleas for Adams county, in the Commonwealth of Pennsylvania. The record of this judgment shows the service was made by the levy of an attachment on the interest of the defendant in a certain tract'of land in said Adams county.
    
      In Bank.
    Dec Term, 1846
    To' the declaration in this suit, on this record from Pennsylvania,. the.defendant has plead specially in bar of the action, he was never served with process; that he did not appear in the suit, neither by himself or his attorney, and that he was never within the jurisdiction of the State of Pennsylvania.
    The plaintiff has replied to this plea, that the defendant was brought before the Court by an attachment served on his land in Pennsylvania; and to this replication the defendant has filed a general demurrer,
    
      J. iB. Hart and II H. Hunter, for Plaintiff.
    The only question is as to the effect in the State of Pennsylvania of a judgment rendered in that State in a suit commenced by foreign attachment.
    The record of which proferí is made in the declaration, shows service of the writ by an attachment of all the interest of the defendant in a certain tract of land on the 3d day of October, 1836 ;• and that judgment was rendered on motion, April 25, 1837, for real debt, $432.60, and interest from 15th September, 1836.
    After the manner of Pennsylvania records, which ordinarily, I believe, only shows the beginning and conclusion of things, it does not appear whether the defendant appeared, or whether judgment was rendered by default.
    We assume that it was by default, that being the most probable.
    It being a personal action for the recovery of a debt, and not a proceeding in rem, and the Court having competent jurisdiction, we claim that the effect of the judgment is general, and.concludes the party so that he cannot controvert it or aver against it, unless by statute of Pennsylvania the effect of the judgment shall be limited.
    The form of the process by which the .subject matter is brought before the Court, or the manner in which it is to be served, whether by seizure of property, or personally, we think can make no difference, provided it be such as, according to the law of the State, is prescribed to give jurisdiction to the Court to pronounce upon the evidence as to the amount of plaintiff’s derna’nd.
    Every State or sovereignty has the right and power to prescribe in what manner causes shall be brought before its judicial tribunals to be adjudged. Under the Constitution and laws of the United States, and the judicial determinations, especially of the Supreme Court of the United States, the effect of a judgment in every other State is made the same as in the State in which it is rendered. So far as the present case is concerned, this question, we understand, is conceded.
    The State of Pennsylvania has provided that suits may be brought by foreign attachment, to be served by the seizure of property; and their statute expressly provides that judgment may be rendered therein, not merely to subject the property seized to a sale, but generally. The effect of such judgment is not declared by statute; nor is the effect of a judgment, where personal service of process is had, so declared. The effect is therefore a legal consequence as much in the one case as the'other.
    An abridgment of the laws of Pennsylvania on the subject of foreign attachment, will be found in Purden’s Digest, 5th edition, page 436, &c.
    By the 1st section, it is in substance provided: “ That it ‘ shall be lawful for the plaintiff, at the third term after execu- ‘ tion of the writ, if he shall have filed his. declaration, to take ‘judgment for default of appearance, unless the attachment ‘ before that time be dissolved.”
    Section 2d provides “that after judgment, as aforesaid, the ‘ plaintiff may have a writ of scire facias against the garnishee.”
    Section 9th provides “ that after judgment, and before exe- ‘ cution executed, the plaintiff shall give security that if the ‘ defendant will, within a year and a day, disprove, or avoid the ‘ debt recovered, or discharge the same with costs, the plaintiff ‘ shall restore the goods or effects, or value thereof, attached,” &c.
    
      Section 12th provides “that the defendant may appear and ‘ ma'te defence before judgment, and if judgment be rendered c for the plaintiff, it shall' have the same force and effect as if ■c commenced by summons.
    These are all the provisions appearing to relate to the question under consideration with which we have met.
    The record shows a scire facias and judgment therein, August 28, 1837, against the garnishee.
    The record also shows that a fieri' facias issued against the garnishee, and that the lands attached were condemned November 24, 1837.
    According to section 9, above cited, the condemnation under the execution could not take place without bond being given by the plaintiff. It must therefore be presumed, in favor of the proceeding, that bond was given. If given, the defendant, according to the further provisions of the same section, had a ye-¡r and a day, which would expire on the 26th November, 1838, to disprove or avoid the debt. If not disproved or avoided within that time, the fair construction is, we think, that the judgment, as. well as the right of the plaintiff .to. retain the proceeds of the property, becomes absolute.
    If it were disproved or avoided, the fact, if relied upon by the defendant, should be pleaded. The provisions of the 12th section arc quite distinct in declaring the effect of the judgment when the defendant appears, provided the effect, of a judgment in a case commenced by summons be known. But we submit that it does not follow that the judgment by default is destitute of effect, because the Legislature has seen proper, to declare the effect where there is an appearance. We think the effect of the judgment, whore the defendant appears,would have been the'same if .its effect had not been declared, that it is declared to be, by the provision referred to. And by the same proeess of reasoning, the effect of the judgment by default flows as a necessary consequence from the judgment, without its being declared. It is a general judgment, ascertaining the amount of the debt by a court of competent jurisdiction, in a cause duly'brought before it, according to the laws of the'Slate, for adjudication. ' . •
    
      II. Stanbery, (Attorney General,) for Defendant.
    This case is supposed to depend on the force and effect of this judgment in Pennsylvania. If it is simply a proceeding in rem, no one pretends it has any validity here — but if the judgment operates beyond the property attached, so as to establish a debt in personam, it is elaiméd on the other side it must have a like effect here. ■'
    It is understood that this Court recognize such a distinction, and incline to give extra territorial effect to judgments in foreign attachment, wholly éxparte,' if the courts of the State, where they are rendered, give effect to them beyond the property, attached.
    In this particular our Court is directly at variance with all the most enlightened State courts. There is a surprising uniformity of decision, to the effect that a judgment wholly ex parte, without service upon, or appearance by the defendant, is totally void out of the State in which it is rendered as against persons not citizens of that State. Bissell v. Briggs, 9 Mass. Rep. 462; Thurber v. Blackburn, 1 N. H. Rep. 242; Whittier v. Wendell, 7 N. Ii. Rep. 257 ; Rangely v. Webster, 11 N. H. Rep. 299; Hull v. Williams, 6 Pickering, 232; Starbuck v. Murray, 5 Wend. 148'; Roberts v. Caldwell, 5-Dana Rep. 512; Holt v. Alloway, 2 Blackford Rep. 108.
    The whole difficulty upon this question arose out of the loose language of Judge Story, in Mills v. Duryee — ' construing faith and credit, as meaning force and effect. All judgments are in that case declared to have the same force in a sister State which they have in the State where the judgment was first rendered. But the absurdity and gross injustice of giving conclusive effect to an ex parte judgment, soon became apparent, and it was found necessary to qualify that decision.
    
      It was supposed the case of Bennett v. Morley, 10 Ohio ' Rep. 100, had" fixed the rule in Ohio, in conformity with the current of decisions in the other States. The Court in that case, after noticing the cases of Hall v. Williams, and Star-buck v. Murray, say : “ These decisions necessarily followed ‘ after the qualification which had been given to the case of ‘ Mills v. Duryee, by the very court in which it was heard. ‘ They seemed to be indispensable in order to give import and ‘ meaning to the distinction between those proceedings where (the party has had a day in court, and those where he had ‘ not.”
    It is now understood, that our Court does not adhere to what was said in that case, but proceeds upon the distinction already stated. The consequence necessarily is, that our citizens are at the mercy of the wildest legislation of any State in the Union. If Texas enacts a law that a judgment in her courts, without process or pleadings or any service on the defendant, shall be conclusive there, it is to be taken as conclusive in Ohio simply because it must have the same force and effect in Ohio that it has in Texas. Any one of our citizens, who has never been within a thousand miles of Texas, may be made a beggar by that doctrine.
    Fortunately for the defendant in this case, the distinction saves him. This judgment in foreign attachment, as the defendant never appeared to make a defence in the case, is strictly a proceeding in rem, and has no force or effect beyond the property attached, even in Pennsylvania. See the Statute of Pennsylvania as to Foreign Attachment, in Purden’s Digest, 5th edition, p. 436, &c.
    It is strangely contended by the counsel for the plaintiff, against the clear language of this statute, that it is a judgment in personam, and has force and effect, as such, beyond the property attached. There is not a syllable in the whole law which can be tortured into that construction. Without going over the different sections, it is sufficient to refer to the 12th, which provides “ that the defendant may appear and make de- £ fence before judgment, and if judgment be rendered for the ‘ plaintiff, it shall have the same force and effect as if com£menced by summons.”
    Now it happens in the case at bar, that the defendant did not appear and make defence, so that instead of becoming a proceeding in personam, it ended, as it began, in rem.
    I have looked very carefully into the Pennsylvania Reports, but can find nothing to countenance the idea that the judgment in attachment, where the defendant does not appear, is any thing but a proceeding in rem.
    In MeClenachan v. McCarty, 1 Dali. 403, counsel, speaking of this proceeding, say: “ In this action the plaintiff acquires ‘ no general lien by his judgment as in other actions, but can £ only issue execution against the property attached.” Shvppen, President, says, in the same case, that their attachment act of 1705 is modeled after the attachment upon the custom of London ; that it is strictly an ex parte proceeding until the defendant appears.
    In Flannagan v. Wetherill, 5 Wharton, 286, the Court say: “ Such judgment in foreign attachment, it is true, is not con- £ elusive to every purpose, but as to the property attached and £ ultimately made liable, it is conclusive as a proceeding in rem.”
    In Hawley v. Lumberman’s Bank, 10 Watts, 232, it is said: ££ The nature of an attachment, as used in this State, seems to £ be a process not directly issued against the defendant himself £ or property in his possession, but to seize and secure property ‘ of defendant in the hands of some other person.”
    It would seem, from the Statute of Pennsylvania, and from what is said in the foregoing cases, that the foreign attachment in that State, where the defendant does not appear, has no effect, even there, beyond the property attached.
    In Felton v. Plainer, 13 Ohio Rep. 218, this Court treated a judgment in attachment, rendered in Michigan, as of no validity in Ohio, there being no service on the defendant.
    In the same case, the Court reaffirm the doctrine, that if such a judgment had a" further effect in personam in Michigan, it would have equal effect in Ohio.
    
      Although this case does -not require thé defendant'to combat that doctrine, I trust the'Court will-, not; consider. :a few' observaupon it as out of place. ■ ■■
    I have not -found an -authority- in -any other; State -that will support it. . Every where,- even among.thte strongest advocates for the full faith and credit clause of the constitution', it is admitted, that the court rendering the judgment must h'avte jurisdiction before any effect can be given to such judgment in a new jurisdiction or in another State.
    ‘ Surely no one has gone further than Mr. Justice Story in giving force to foreign judgments, and yet in Picquet y. Swan,
    
    5. M.asori, 42,'he uses this language,: “ I have already intimated .‘ that no sovereignty can extend its process beyond its territorial ‘limits, to subject either,persons or property to its judicial de- ‘ cisions. Every, exertion of authority beyond this limit is a- ‘ nullity,'án.d incapable of binding-.,persons-.or property in any ‘ other tribunals. Jf a State were to'pass'an act declaring that ■‘ upon personal, notice of a -suit brought against a foreigner, resi- ‘ dent jn .a foreign- country, proceedings might’ be had against ‘.hipi, .and-.,a judgment obtained in invitu-m, for áught I know, ‘ the local tribunals might give a binding efficacy' to -such judg- ‘ inents; but elsewhere, they would be utterly void, as an usurpation of general sovereignty over independent nations and ‘ their subjects.” Again he says: '■
    “ Where a party is within a territory, .lie.- may justly be subjected-to its process and bound ■ personally by the judgment ‘ pronounced, on such' process, against him.- Where he is not ‘ within such territory,, and is not personally subject to- its laws, ‘.if, .on account of .his supposed .or actual property being within ‘ the territory, process by the local -laws hiay, by attachment, ‘go to compel--his appearance, and for-'his default to appear, judgment may be pronounced'against him, such a judgment ‘ must, upon general principles, -be deemed only to bind him to ‘the extent of such-.property, and cannot have.-tile effect of a ‘.conclusive judgment in personam, for the: plain reason that, ‘ except so. far .as the property: is."concerned, it ■ is a judgment- £ coram non judice. If the party chooses to appear and take £ upon himself the defence of the suit, that might vary the case, ‘ for he may submit to the local jurisdiction and waive his £ sonal immunity.”
    The learned judge, among other authorities for this doctrine, refers particularly to the case of Bissell v. Briggs, 9 Mass.
    Rep. 462, which was upon a judgment of a sister State, and held a nullity in Massachusetts for want of personal service.
    I must further refer this Court to Judge Cowen’s note, (4 Phil. Ev. 907,) in which all the authorities are collected, and the doctrine is summed up in these words:
    ££ A person, however, though a citizen of another State or ‘ country, when he comes within the territory of a particular £ sovereignty, contracts a sort of temporary allegiance to it, and { may justly be .subjected to its process Snd bound personally' £ by the judgment of its courts. And whether jurisdiction be ‘founded upon the person being. within its territory, or the £property being there, the judgment will be deemed valid so £ far as that jurisdiction could legitimately extend, but no. further. £ Thus, a very common course in many of the United States £ and in many other countries, is to proceéd against non-residents £ by an arrest or attachment of their property within' the terri- £ tory. Judgment obtained on process of this kind, will gen- £ erally bind the property so arrested or attached. But such £ judgment will not be regarded by neighboring States, or other £ nations, as evidence of indebtedness or as operative in any £ measure in personam, and for this obvious reason, viz: that, £ except so far as the property attached is concerned, there is ‘ and can be no jurisdiction — no power of adjudication.”
    Now, in the case at bar, an attempt is made to give effect to this Pennsylvania judgment in personam, in Ohio. It is admitted in the pleadings, that no service was made on the .defendant; that he did not appear in person or by attorney, and that, in fact, he never was within the territorial limits of Pennsylvania. The courts of that State never had jurisdiction of his person, and under such circumstances, they render a judgment against him and give it effect there as a judgment in personam, yet, in the language of Judge Story, elsewhere it would he utterly void.
    
   Wood, C. J.

By the pleadings in this case, it is admitted, that the -only service in the action, upon the record of which this suit is brought, was by seizing the lands of the defendant. It is not claimed that any personal notice was ever given to’the defendant. Is the record of a judgment obtained by means of such service in Pennsylvania, prima facie evidence of debt in Ohio ? If so, the plea is no answer to the declaration : the replication is sufficient, and the demurrer should be overruled. But, if not, the defendant is entitled to judgment, on this issue of law. To acquire jurisdiction over the person of an individual, it is necessary that he should be, or, at least, have been within the territorial limits of the sovereignty, or no judgment can be rendered against him which will bind him personally. This is not only a principle of common law, but such service must be made that a defendant may have his day in court. “ Strike, but hear me,” is the spirit of the rule, and if any exception intervene, it is the creature of positive legislative provision. Property within the territorial limits of a sovereignty, will, in like manner, confer jurisdiction over it, and where service is made upon it, the judgment rendered will bind it, but beyond this, it is of no validity, and cannot be enforced against the debtor — certainly not, in the absence of statutory provision. In Pelton v. Platner, 13 Ohio Rep. 218, this Court has said, that execution cannot be issued by a justice of the peace and levied on other property than that attached, when the suit is commenced in that way, nor can execution issue ón such judgment against the person, nor is such judgment prima facie evidence of debt — and the reason is, that when the judgment has converted the property, it is functus officio for every other purpose. Idem. — But where service is made on property only, and judgment is rendered in a court of record, the statute of Ohio provides for the issuing of execution against the defendant for any balance due after exhausting the property. If, however, the debtor had never been within the territorial limits of Ohio, before the rendition of such judgment, it is worthy of the most serious consideration whether, by the force of this statute, execution could be issued against him personally. The decision oí this question is, however, not necessarily involved in this case.

If this record of the Pennsylvania judgment is prima facie evidence of debt in this State, it is because it is so in Pennsylvania. The law is well settled, at this day, that the judgments of our sister States must have the same faith, credit, validity, force and effect in every other State that they have, by law or usage, in the State where they are rendered, and that whatever pleas would be good to a suit thereon in such State, and none others, could be pleaded in any court in the United States, (3 Wheat. Rep. 234 ; 13 Peter’s Rep. 324,) though execution can only issue in the State wherein the judgment is pronounced; 13 Peter’s Rep. 225. The Supreme Court of Pennsylvania have, however, recently held, that a judgment in foreign attachment, affecting to bind not only the property attached, but the persons of defendants not citizens of the State, nor within its precincts at the time, is to be treated as a nullity by a court in another State, which is called on to enforce it by action^ though it would bind the persons of the defendants in the courts and by the laws of the State in which it was rendered; Law Reporter for Feb. 1846, 471. In Ohio, as the law now stands, though such a judgment would bé held, prima facie, valid, the counsel for the plaintiff have totally failed to show us that the judgment in question binds any thing in Pennsylvania beyond the property attached.. Of the statutes of other States we do. not take judicial notice. They must be proved, and if any such effect as is claimed is given to the judgment in question, where it was pronounced, the counsel for the plaintiff have entirely failed to show it.

Nothing of the kind is evidenced by the reports of that State that we are able to find, and, in our view, it would be a most unwarrantable assumption to presume it.

The statute of Pennsylvania provides only, in such case of attachment, that the defendant may appear and make defence, an(j jn caS(3) that is, when he appears, submits to the jurisdiction and has his day in court, the -judgment rendered shall have the same effect as if the suit was commenced by summons. Purden’s Dig. 437. It is silent as to the effect when the defendent has no notice of the attachment; until after judgment rendered,- and before which period the defendant had not been within the jurisdiction of the court. , ■

There appears to us, therefore, no áuthority for saying that this judgment is of any validity where pronounced, beyond the conversion of the property seized, and ought not to be considered as prima facie evidence of debt in this State;

Demurrer sustained.  