as a defense to a suit on the original demand, as it would be in support of an action founded on the judgment. The demurrer to the reply admits that in the former action no summons was served on the defendant, who, during its pendency, was a non-resident of this state, and that no jurisdiction was obtained by the court otherwise than by the seizure of his property on the attachment, and service by publication as authorized in such cases. Jurisdiction, upon such service, to subject property within the reach of the court's process to the satisfaction of the debts of its non-resident owner, is not questioned, nor is the power of the state to confer such jurisdiction on its courts. But a proceeding of that nature is essentially one in rem, and the jurisdiction is acquired only where property of the defendant is brought within the control of the court, and is exhausted by the appropriation of the property on the plaintiff's demand. The judgment rendered as the basis for the distribution of the attached property to its payment will not support an execution against other property of the defendant for the collection of any balance then remaining unpaid. There is an entire lack of power in the court to render a valid judgment in personam against a resident of another state, who has neither been summoned nor voluntarily entered his appearance. Constructive service has no further effect than to give regularity to the proceedings for the proper application of the attached property.1 . .

We are thus brought to the conclusion that, upon the facts appearing in the pleadings, the balance remaining unpaid on the plaintiff's claim after the application of the proceeds of the property attached in the Washington county case, was not merged in the judgment therein rendered, and that judgment is not a bar to the present action.

Judgment reversed.

MINSHALL, C. J., BURKET, SPEAR, DAVIS and SHAUCK, JJ., concur.2

1 A discussion of several cases is omitted.

2 Suppose that plaintiff sues defendant, who is a resident of state A, in state B on a promissory note for $1000, attaching defendant's property in state B but not securing personal jurisdiction of defendant; that defendant defaults in this action; and that the property attached is sold for $500 which is paid to plaintiff :

(1) If defendant sues plaintiff in state A for conversion of the attached property, has plaintiff a defense? See Melhop v. Doane & Co., 31 Ia. 397 (1871).

(2) If plaintiff sues defendant on the note in state A, how much can he recover? See Whittier v. Wendell, 7 N. H. 257, 258 (1934). Cf. National Bank v. Peabody & Co., 55 Vt. 492 (1883).

See Note, 89 A. L. R. 1102 (1934). Cf. Combs v. Combs, 249 Ky. 155 (1933).

See Restatement, Judgments (1942) §§ 3, 34-37, 76.

BATES v. CHICAGO, MILWAUKEE & ST. PAUL

RAILWAY CO..

SUPREME COURT, WISCONSIN. 1884.

60 Wisconsin 296.

[ON March 2, 1882, Bates began an action against Cunningham, and issued a garnishee summons against the Railway Company which was served on the general solicitor of the Company at 5 A.M. of that day. The Company answered denying that it was indebted to Cunningham or had any real estate or personal property of Cunningham in its possession or under its control. Cunningham defaulted. At the trial it appeared that on March 1, 1882, the Company had accepted a carload of hogs belonging to Cunningham for shipment to Chicago, and that at 5 A.M. on March 2 this carload was in the Company's possession but in transit and already outside of Wisconsin. On these facts the trial court entered judgment for Bates against the Railway Company for $726.40, the value of the carload of hogs. The Railway Company appealed.] 1

1

TAYLOR, J. . . . Notwithstanding the general language, of our statute upon the subject of garnishment, that "any creditor shall be entitled to proceed by garnishment, in the circuit court of the proper county, against any person (except a municipal corporation) who shall be indebted to, or have any property whatever, real or personal, in his possession or under his control, belonging to such creditor's debtor, in the cases, upon the conditions, and in the manner prescribed in this chapter" (R. S., sec. 2752), — we feel constrained to hold that the personal property or real estate in his possession or under his control must be limited to personal property or real estate within this state, and that in the absence of any fraud or connivance on the part of the garnishee to aid the debtor in defrauding his creditors, personal property or real estate which is lawfully in the possession or under the control of the garnishee outside of this state is not the subject of garnishment under our statute. That personal chattels outside of the state, which, if within the state could be seized by attachment or execution, were not intended to be covered by the statute, is, we think, evident.

The attachment of the debtor's property before judgment has always been considered a harsh remedy in this state, but that writ can only reach the property of the debtor within the state. R. S., sec. 2738. The garnishee process is in the nature of an attachment, and

1 The statement of facts is much condensed.

2 A part of the opinion, in which the court held that the service of the garnishment summons was insufficient to charge the Railway Company as garnishee, is omitted.

was first used to attach the credits of the debtor and apply them to the payment of his debts, but it has been extended in this state so as to attach, without actual seizure, the personal property and real estate of the debtor in the possession or under the control of third persons, so as to apply such property to the payment of his debts. We do not feel called upon to give this statute, which is in its nature a harsh remedy, a construction which would give the courts under it the highest powers of a court of chancery, viz., the power to compel a debtor to surrender his property held within a foreign jurisdiction, to be applied to the payment of his debts within this state.1 . . .

It is unnecessary to intimate the difficulties and hardships which would result from the enforcement of a rule against garnishees compelling them to deliver up to the processes of the courts of this state any property they may have under their control, belonging to the principal debtor, situated in another state. The difficulty in the case at bar might not be great, because the property, although in fact out of the state when the garnishee summons was served, was not as distant from the place where the court was held, which issued it, as it might have been within the state. But the rule, if established, must be general, so that if property just beyond the line of the state may be reached, then property in Maine, Louisiana, or California, or in any foreign country, may also be reached and held. The difficulties and injustice of enforcing such a rule are apparent. The only case cited by the learned counsel for the respondent in which any court has held that personal property out of the state, in which the garnishee process was issued, could be reached and held by it, is Childs v. Digby, 24 Pa. St. 23. That case was disapproved as bad law by the same court in Penn. R. R. Co. v. Pennock, 51 Pa. St. 244. The position taken by us upon this question is approved by the Pennsylvania court in the case last cited, and also in the following cases: Western R. R. v. Thornton, 60 Ga. 300; Sutherland v. Second Nat. Bank, 78 Ky. 250; Wheat v. P. C. & Ft. D. R. R. Co., 4 Kan. 370, 378; I. C. R. R. Co. v. Cobb, 48 Ill. 402; Lawrence v. Smith, 45 N. H. 533; Tingley v. Bateman, 10 Mass. 343, 346; Clark v. Brewer, 6 Gray, 320; Young v. Ross, 11 Foster [N. H.], 201.

It is urged by the learned counsel for the respondent that the garnishee should be held for property in his control out of the state, because the court could enforce its order against the person of the garnishee, over whom it has jurisdiction, in like manner as a court of equity sometimes enforces a contract between the parties to the action to convey lands situated in another state. Our answer to that argument is, as stated above, that it is clear that the legislature did not intend to confer these high equity powers upon the courts having jurisdiction of the garnishee process. It is unnecessary, therefore, to discuss the question of the power of the legislature to confer upon

1 A detailed discussion of the Wisconsin statutes is omitted.

the courts of this state the authority to appropriate the personal property or real estate of a debtor, situate in another state or foreign country, to the payment of his debts in this state.1 ...

BY THE COURT.- The judgment of the circuit court is reversed, and the cause remanded with instructions to that court to enter a judgment upon the special verdict in favor of the garnishee defendant.

LOUISVILLE & NASHVILLE RAILROAD CO. v. DEER. SUPREME COURT OF THE UNITED STATES. 1906.

200 United States 176.

ERROR to the Supreme Court of the State of Alabama.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is an action to recover a debt admitted to have been due to the plaintiff, the defendant in error. But it was agreed in the trial court that a suit was brought by one Brock against the plaintiff in Florida, in which the railroad company, the present plaintiff in error, was summoned as garnishee, judgment was recovered against the latter as such for the sum now in suit, and the sum paid by it into court, all before the present suit was begun. The proceedings in Florida were strictly in accordance with the laws of that State. The railroad company did business there and was permanently liable to service and suit, and the defendant, the present defendant in error, was notified by such publication as the statutes of Florida prescribed. He was not, however, a resident of the State, but lived in Alabama, and the Supreme Court of the latter State affirmed a judgment in his favor on the ground that the Florida court had no jurisdiction to render the judgment relied on as a defense.

Whatever doubts may have been felt when this case was decided below are disposed of by the recent decision in Harris v. Balk, 198 U. S. 215. There the garnishee was only temporarily present in Maryland, where the first judgment was rendered, and the defendant. in that judgment was absent from the State, and served only as the defendant in error was served in Florida. Yet the Maryland judgment was held valid, and a decision by the Supreme Court of North Carolina denying the jurisdiction of the Maryland court was reversed. In the present case the railroad company was permanently present

1 The remainder of the opinion, in which the court held that chattels in the possession of a common carrier and in actual transit at the time of the service of the garnishee summons were not subject to garnishment, is omitted. See, accord, Stevenot v. Eastern Ry. Co., 61 Minn. 104 (1895). Contra: Adams v. Scott, 104 Mass. 164 (1870).

in the State where it was served. In view of the full and recent discussion in Harris v. Balk we think it unnecessary to say more. Judgment reversed.1

STRAND v. HALVERSON.

SUPREME COURT, IOWA. 1935.

220 Iowa 1276.

KINTZINGER, C. J.2-On April 6, 1931, plaintiff filed a petition against the defendant upon a promissory note in the sum of $300, and asked judgment thereon with interest and costs. As personal service could not be had upon the defendant at that time, plaintiff secured a writ of attachment and thereunder garnished E. R. Haines, administrator of the estate of Ambrose A. Halverson, and secured service by publication as required by statute. On June 15, 1931, the court entered judgment in rem against the property attached for $96.57, which was credited on the note. No personal judgment was or could have been entered against the defendant at that time.

Three years later, plaintiff caused another writ of attachment to issue in the same action, under which John J. Dyshaw, executor of another estate, was garnished. Defendant then appeared therein specially, and moved to dismiss the case for want of service. The court held, on the special appearance, that there had not been sufficient service to cover the amount of the new attachment, and continued the case for service until after an amended and substituted petition was filed. Thereupon plaintiff filed an amended and substituted petition, alleging the same matters alleged in the original petition, except that defendant was credited thereon with the $96.57 judgment in rem entered and received under the original garnishment. Personal service thereon was also made upon defendant.

1 The leading cases on jurisdiction for purposes of garnishment of intangibles are Chicago, R. I. & P. Ry. Co. v. Sturm, 174 U. S. 710 (1899), and Harris v. Balk, 198 U. S. 215 (1905). See also Baltimore & Ohio R. R. Co. v. Hostetter, 240 U. S. 620 (1916) (garnishee execution).

See Beale, "The Exercise of Jurisdiction in Rem to Compel Payment of a Debt," 27 Harv. L. Rev. 107 (1913); Carpenter, "Jurisdiction Over Debts for Purposes of Administration, Garnishment and Taxation," 31 Harv. L. Rev. 905, 909-918 (1918); Restatement, Conflict of Laws (1934) § 108; Restatement, Judgments (1942) §§ 3, 36, 76.

As to garnishment where there is danger that a foreign court will hold the garnishee liable to the principal debtor, see Martin v. Nadel, [1906] 2 K. B. 26 (C. A.); Weitzel v. Weitzel, 27 Ariz. 117 (1924), noted in 38 Harv. L. Rev. 1114 (1925); Parker, Peebles & Knox v. National Fire Ins. Co., 111 Conn. 383 (1930). Compare Swiss Bank Corp. v. Boehmische Industrial Bank, [1923] 1 K. B. 673 (C. A.). See Note, 69 A. L. R. 609 (1930).

2 A brief preliminary statement is omitted.