
    FISKE a. ANDERSON.
    
      Supreme Court, First District;
    
    
      General Term, November, 1860.
    Jurisdiction.—Judgment on Service by Publication.
    The Code gives the court no jurisdiction to order service of summons on a non-' resident defendant by publication, unless the defendant has property within the State at the time when the order is made. The existence of such property, or, it seems, any of the grounds of ordering service by publication, are jurisdictional facts, and the determination of the court or judge that such facts exist, made upon the exparte application for the order, is not conclusive.
    In an action on a judgment which was recovered in this State upon service of process on the defendant, by publication and by personal service without the State, it is competent on him to show that he had no property within this State at the time the order for service by publication was made.
    Where publication and mailing is ordered, personal service out of the State is only equivalent to mailing, and can have no greater effect.
    Whether a judgment obtained on service by publication is effectual further than as against the defendant’s property within the State,—Query ?
    
    Appeal from a judgment.
    This complaint stated, that in March, 1860, James McBride and others recovered judgment in this court against the defendants for the sum of $947.89, which judgment was duly assigned to the plaintiff and remained unpaid; and demanded judgment for the sum, with interest and costs.
    The defendant answered that the action in which the supposed judgment against him was alleged to have been recovered, arose upon contract; that when that action was commenced, defendant was a non-resident of Mew York and a resident of Illinois; that he never appeared in that action, and never was personally served in Mew York with summons therein; that when the order for publication of the summons in that action was made, and for a long time before and after, defendant had no property or rights of property within the State of Mew York; that when that judgment was rendered, this court had acquired no jurisdiction of his person; that the judgment was taken against him as by default for want of an answer; that at the time when that action was pretended to be commenced against him he was not indebted to the plaintiffs' therein, and stated facts in support of that allegation.
    The cause was tried by the court without a jury, when plaintiff gave in evidence the record of the judgment mentioned in the complaint, comprising,
    1. A summons for a money-demand on contract, dated January 25th, 1850.
    2. A complaint on a promissory note, stated to have been made by defendants to the plaintiffs, and past due, and for goods sold and delivered.
    3. An affidavit of the service of said summons and complaint on Harvey B. Anderson, this defendant in person, at Coval, in the State of Illinois, on 21st February, 1850.
    4. An order entitled in that action, for service of summons by publication, made by a justice of this court, and dated 25th January, 1850. The recitals of this order were as follows: “ It appearing to my satisfaction, by the affidavit of Edmund Terry, that a cause of action on contract exists against the above-named defendants, and that such defendants cannot, after due diligence, be found in this State, and that they have property in this State, and that all such defendants reside in Coval, McHenry county, State of Illinois.” And the order thereupon directed that the summons in the action be served by publication for six weeks in two newspapers printed in New York, and that a copy of the summons and complaint be forthwith deposited in the post-office, directed to said defendants at Coval, McHenry county, Illinois.
    5. An order made by a justice of this court on 29th March, 1850, whereby, after reciting that it appeared that service of the summons in this action by publication was ordered, and personal service of a copy of the summons and complaint had been made, according to law, out of the State, and no answer put in by the defendants, &c., it was referred to take proof of the demands mentioned in the complaint, and examine plaintiffs as to payments, and, if the amount claimed by plaintiffs was due, then that they have judgment.
    6. The report of the referee, stating that he had examined one of the plaintiffs, and taken proof of their demands, and found the amount claimed by them to be due.
    
      7. An adjustment of the plaintiffs’ costs by the clerk, including an allowance of five per cent.
    8. Judgment, dated. 30th March, 1850, against said defendants for $947.89.
    The plaintiff then rested, and defendant moved to dismiss the complaint.
    The court denied the motion, and thereupon ruled and decided.
    1. That the service óf the summons and complaint on the defendant Anderson at Coval, in Illinois, was good and sufficient service, and gave the court jurisdiction of the person of that defendant.
    2. That the recital in the order of publication, that it appeared that the defendants had property in this State, was conclusive evidence that the defendant had property here at that time; and
    3. That the judgment was a good and valid judgment against the person's and property of the defendants so served out of the State, and was conclusive evidence of debt in this action.
    To each of these rulings and decisions the defendant excepted.
    The defendant offered to prove,
    1. That the defendants, in the action in which said judgment' was recovered, had not, nor had either of them, when that action was commenced, or when the order of publication therein was made, or when that judgment was rendered, any property within this State.
    2. That before the commencement of that action the defendants therein had paid the demands for which it was brought, and for which the judgment was rendered, and were not then, nor at the time of the trial in this action, indebted to the plaintiffs in that action, or to the plaintiff in this action, in any sum whatever.
    The evidence so offered was objected to by the plaintiff, and rejected by the court, to which decision defendant duly excepted.
    Judgment was then rendered against the defendant for $1528.90, and from that judgment he now appealed.
    
      Orlando L. Stewart, for appellant.
    —I. The judgment-record is no evidence of debt in this action. 1. It appears by it. that the defendant was never personally served with the summons in that action within this State, and had no sufficient notice of the pendency of the same. The court, therefore, never acquired jurisdiction of his person, and could render no judgment against him, in personam. 2. It does not appear by that record that the defendants therein had any property within the jurisdiction of the court when the action purports to have been commenced, nor when the order of publication was granted, nor at any. other time. There is no affidavit or return of the sheriff showing that property had been attached, or that the defendants even had property within the State. The recital in the order of publication is no evidence that such was the fact. The evidence itself should be contained in the record, for without it the court could have no jurisdiction. 3. Even if the defendants had property in this State at the time, and it had been attached, the court acquired jurisdiction only as to that property, and when that was appropriated, its jurisdiction ended, and the court could not render a judgment which would be evidence of debt in this action. Attachments against the property of non-residents, where there is no personal service, are in the nature of proceedings in rem, and when the property is exhausted, the jurisdiction of the court is at an end. (Story on Confl. of L., 461, § 549; 1 Kent's Com., 280, note c; Starbuck a. Murray, 5 Wend., 148; Holbrook a. Murray, Ib., 161; Bradshaw a. Heath, Ib., 407-416 ’; Oakley a. Aspinwall, 4 Comst., .513, 521, 522.)
    II. The recital in the order of publication is not conclusive evidence that the defendants had property in the State at the time it was granted or at any other time; and the court below erred in excluding the offer of evidence, showing that they had none. If the defendants had no property, then the court had no jurisdiction, and it is always competent for the defendant to prove facts showing the want of jurisdiction in the court. (Shumway a. Stillman, 6 Wend., 447.)
    HI. The defendant had a right to make any defence which he might have had to the original action; and the court erred in excluding the offer ta prove that before that action was commenced defendants had fully paid the demand. (Carman a. Townsend, 6 Wend., 206; Brum a. Bokee, 4 Den., 56.) Section 135 of the Code does not make it obligatory on a non-resident defendant to come into our courts to defend an action when no personal service is made within the State; nor does it confer jurisdiction on our courts against such non-residents. It only provides how the property of a non-resident found in this State may be appropriated by our courts to the payment of debts; and how such non-residents may appear to defend property. And where it has been appropriated to the .satisfaction of an unjust judgment, how restitution may be obtained of the money collected or property so appropriated.
    
      Edmund Terry, for the respondent.
    —I. The judge at the trial properly denied the defendant’s motion for a nonsuit and dismissal of the complaint. 1. The record of judgment shows a complete compliance in every particular with the provisions of the Code authorizing judgment on service of the summons, by “ personal service of a copy of the summons and complaint out of the State,” when publication of the summons has been ordered. (Code, § 135: Abrahams a. Mitchell, 8 Abbotts' Pr., 123.) 2. Every State, by virtue of its sovereignty, has the right, and exercises the right, to regulate the proceedings in its own courts of justice; and having prescribed them, is bound by them within the limits of its own jurisdiction; and every citizen is bound to proceed in accordance with them. 3. There is nothing unreasonable or harsh in the mode of proceeding pointed out in this State, because personal notice and a sufficient time in which a defendant can come in and defend, is as good for him as though the process by which the suit is commenced was personally served on him in this State. And, indeed, he is better off, because he has more time in which to make his defence. The remedy provided by section 135 of the Code is the one which must be pursued,' if any; but it is not the remedy now sought. (Pope a. Dinsmore, 8 Abbotts’ Pr., 429; Matter of Empire City Bank, 18 N. Y. Rep. (4 Smith), 200, decides this case.) 4. The fact of the defendants having property in this State at the time of the making of.the order for publication is res adjudicata when the order is made (at least, unless the defendant moves within tlje proper time to set it aside), as much as the fact that he cannot be found to the satisfaction of the judge. (Roche a. Ward, 7 How. Pr., 416.) 5. If the judgment is valid for any purpose within this State, it must be valid for .all purposes, so long as it stands, as the cause of action is merged in the judgment. 6. By a clause of subdivision 6 of section 135, before amendment, it was provided that, when publication is ordered, and a copy of the summons is not personally served on the defendant, nor received by such defendant, he might defend the action after judgment in certain eases; but this privilege was not extended to absent defendants who receive a copy of this summons out of this State; and the terms of this provision do not, in any case, limit or qualify the effect of the judgment, unless the defendants shall come in and submit to the jurisdiction of this court. (Hurlbut a. Hope Mut. Ins. Co., 4 How. Pr., 275, per Sill, J.)
    II. Evidence that the defendant had paid, satisfied, and discharged the cause of action was properly rejected. If he had so paid, there is no excuse shown for his laches in not availing himself of the remedy in section 135, quoted supra. Moreover, there is no allegation in the complaint of fraud or mistake, so as to entitle the party to any remedy in equity, nor is there any claim in the answer that any money was ever paid over to McBride, Sheldon & Co., the assignees, but only that O. L. Stewart, the defendants’ attorney, collected some money.
   By the Court.—Bonnet, J.

—The important question to be decided in this case is, whether or not a judgment recovered against a non-resident defendant on service of summons by publication, pursuant to the Code, is conclusive and effectual for all purposes and to the same extent, as if personal service of the summons had been made on the defendant within this State.

The Code provides (§ 1|4) for the service of a summons on the defendants within this State; and (by section 135) that when the defendant cannot, after due diligence, be found within the State, and that fact appears by affidavit to the satisfaction of the court or judge, and it in like manner appears that a cause of action exists against the defendant, or that he is a proper party to an action relating to real property in this State, such court or judge may grant an order that service be made by publication of the summons, “where the defendant is not a resident of this State, but has property therein, and the court has jurisdiction of the subject of the action.”

That when publication is ordered, personal service of a copy of the summons and complaint out of the State, is equivalent to publication and deposit in the post-office. And that the defendant against whom publication is asked, on application and sufficient cause shown at any time before judgment, must be allowed to defend the action, and (except in an action for divorce) upon good cause shown, may be allowed to defend after judgment, or at any time within one year after notice thereof, and within seven years after its rendition, on such terms as maybe just; and, if the defence be successful, and any part of the judgment has been collected, may have restitution awarded.

It has been considered well-settled law that jurisdiction of the person of a defendant could not be obtained by any court except by his voluntary appearance or by due service of process, and that effectual service of process could not be made on any person beyond the jurisdiction of the court out of which the process issued. (Fanton a. Garlick, 8 Johns., 194; Anderson a. Heriot, 4 Cow., 524, on note.)

By the section of the Code above referred to, personal service of summons and complaint out of this State, is only made equivalent to publication and deposit in the post-office, and it can have no greater effect.

The Code also provides (§ 227), that in an action for the recovery of money against a non-resident defendant, the property of such defendant may be attached as security for the satisfaction of such judgment as the plaintiff may recover. And (§ 237) in case judgment be entered for the plaintiff in such action, that the sheriff shall satisfy the same out of the property attached in the manner by the Code directed.

These provisions of the Code afford, as I think, some grounds for the position taken by the defendant in this suit, that it was the intent of the Legislature to make a judgment obtained upon substituted service of summons by publication, effectual only against property of the defendant which was within the jurisdiction of the court when the action was commenced, or while it was pending, and which was or might have been taken under attachment therein.

But I do not deem it necessary now to express an opinion "on this very important point. The judgment in this case, as I think, should be reversed, and a new trial ordered on another ground.

, As I understand the Code (§135), the courts of this State have no jurisdiction to order service of summons on a non-resident defendant by publication, unless the defendant has property within the State when the order is made. It is not sufficient that it be made to appear to the satisfaction of the court or judge, by affidavit, that such is the fact, nor that it be sworn to in the most positive terms, or by any number of affidavits, but the fact must exist, the defendant must have property here, or the court can have no jurisdiction to make the order, and this question of jurisdiction may be at any time raised by the defendant. If the court had not jurisdiction to make an order of publication in this action, the judgment is void.

If, then, it be conceded that the judgment offered in evidence in this case was prima-facie evidence of debt against this de-' fendant (as to which it is not necessary now to express an opinion), the defendant in his answer had stated, and at the trial offered to prove, facts, which, if established, would, in my opinion, render that judgment void. The offered evidence was ruled out by the court, and the defendant excepted. I think this was error, and that the judgment appealed from should be reversed, and a new trial ordered, costs to abide the event of the suit.

Hogeboom, J.

—I concur in the result of the opinion of Justice Bonney in this case, and in his views upon the point upon which the new trial is granted. The jurisdiction of the court to make the order of publication depends upon the evidence, in point of fact, of one of the five different cases or contingencies on which alone publication can be ordered. The existence of these it is not for the judge granting the order to determine, upon an ex-parte application, in such a way as to bar or exclude the defendant. He has had no opportunity to be heard on this question, and section 135 makes the jurisdiction to depend, not upon the judge who grants the order being satisfied of the fact, but upon the existence of the fact itself. I incline to think the affidavit produced to the officer who makes the order, if incorporated in the judgment-roll, or the recital of the fact in the judgment-roll itself, is sufficient prima-facie evidence of the fact, but it is a jurisdictional fact, and is open to contestation, unless the party has had an opportunity to controvert it. When that has been done, it becomes thereby an established fact, and is not open to examination afterwards, except upon a direct review of the proceeding. Suppose the affidavit on which the order was granted stated that the defendant was a foreign corporation, or that the defendant was a non-resident, or that the subject of the action was real or personal property in this State, or that the action was for divorce, when from the papers themselVes, or from extrinsic evidence, it was made clear that the fact was in each instance the reverse of this,—can it be doubted that the party aggrieved would have a right to set aside the proceedings, or dispute their validity, whenever the opportunity should be presented, unless the fact had been before decided against him upon a hearing of the parties ? I think there can be no doubt of his right to do so, and that the rights of absent and non-resident defendants should, to this extent at least, be guarded from what may be a very oppressive proceeding.  