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Thereafter, defendant filed an answer alleging that the judgment entered on June 15, 1931, was res adjudicata and a bar to the present action. A jury being waived, the case was tried to the court and final judgment of $342.40 was entered against the defendant....

The only judgment secured under the original attachment proceedings was a judgment in rem against the garnishee, E. R. Haines, administrator of the estate of Ambrose A. Halverson. This was not a personal judgment against the defendant. However, this judgment was entered by the court on a finding that the defendant was in default for want of an appearance.

If there had been personal service on the defendant or an appearance by him in the action when the judgment in rem was entered, the plaintiff, under the pleadings as they then stood, would have been entitled to a default for the entire amount claimed, as the petition was sworn to and not denied.

Defendant contends that because a judgment in rem for only $96.57 was entered against the garnishee at that time, that such sum was the only amount then owing plaintiff from the defendant.2 . . .

It does not necessarily follow that because the court, under the original attachment, entered judgment against the garnishee in the sum of $96.57, that such sum was the only amount owing by the defendant to the plaintiff. In the absence of a showing to the contrary, it is rather to be inferred that such was the only amount due or owing by the garnishee to, the defendant. That the defendant was indebted to plaintiff for the entire amount of the note, less the amount credited thereon, is shown in the evidence without dispute.

In this case it is our conclusion that the judgment in rem against the original garnishee in the sum of $96.57 was not sufficient to merge the note sued on in the judgment entered in rem.

All Justices concur.3




1 Colorado 509.

SUIT commenced by attachment to the June term, 1870; amount specified in the affidavit $5,563.50. Cause of action in the affidavit, for telegraph poles and labor and material furnished by the plaintiffs to defendant. The declaration contained the common counts for

1 So much of the opinion as holds that the note sued on was properly admitted in evidence, and a quotation from 34 C. J. 768, § 1183 (1924), are omitted. 2 A lengthy quotation from Gutschenritter . Whitmore, 158 Ia. 252 (1913), is omitted.

3 See Note. 103 A. L. R. 839 (1936).

work and labor, for telegraph poles, goods, wares and merchandise, for money paid, laid out and expended, and a count upon an account stated; the damages were laid at $8,000.

At the October term, 1870, the defendant appeared by Charles & Elbert, his attorneys, and submitted to a rule to plead within ten days. Afterward, and before the expiration of the ten days, an order was entered of record in the cause, as follows:

"Now on this day came Messrs. Charles & Elbert, and withdrew their appearance as attorneys for the said defendant, without prejudice to the plaintiffs."

Afterward, and at the same term, the plaintiffs obtained judgment against the defendant for $8,000 and costs.

WELLS, J. It appears to us that the withdrawal of the appearance which was, entered on the part of the plaintiff in error in the court below, whether it be regarded as the act of the attorneys merely or as the act of the defendant himself, left the plaintiffs below in precisely the same position as if it had not been withdrawn or in any manner qualified. If we are to give any effect to the words of the record of this proceeding, they impart a stipulation by the defendant, or at least a condition imposed by the court, that the plaintiffs shall not lose any advantage which, by reason of the appearance, they had gained. The appearance, to all intents and purposes, still stood as a waiver of process, and sufficiently supported the judgment nil dicit, which was afterward given.

And this, we think, also disposes of the second question which is presented by counsel, for, if we consider the appearance which was interposed on behalf of the defendant, as still so far subsisting as to waive the necessity of process; if the plaintiffs, notwithstanding the withdrawal of the defendant's attorneys, still maintained their advantage in this respect, it follows that there was still an appearance subsisting on behalf of defendant for all purposes where such appearance could afford the plaintiff any advantage.

Therefore, the attachment which, in the first instance, was but a proceeding in rem, and which, by the defendant's appearance, had assumed the character of an action in personam, still remained of the same character after the appearance was withdrawn, and the plaintiffs were still entitled to have judgment for whatever damages they might establish under their declaration within the limit of the ad damnum laid therein, whether the causes of action counted upon were the same as those mentioned in the affidavit or different. The position of the plaintiffs was the same as if the defendant had plead to the action and the issue had been tried by a jury; and, in such cases, it has uniformly, we believe, been held that the plaintiff's recovery is not limited to the amount or causes of action specified in the affidavit.

We see no error in the record. The judgment of the court below is, therefore, affirmed.



224 Massachusetts 14.

RUGG, C. J. This is an action of contract brought by a national banking corporation domiciled in the State of New Hampshire against a resident of the State of Connecticut, upon whom no personal service has been made but whose property has been attached by trustee process under the statute making provision for reaching the property of a non-resident. R. L. c. 170. The defendant filed a special appearance, whereby he has undertaken by apt words not to submit himself generally to the jurisdiction of the court, but only so far as is necessary in order to protect his interest in the goods, effects and credits in the hands of the alleged trustees. In proceedings, which need not be narrated in detail, the Superior Court 2 has ruled that a non-resident defendant could not "appear, answer to the merits and defend the case for the purpose of protecting his rights in property trusteed or attached and at the same time by 'special appearance' repudiate the jurisdiction of the court. If he is in court claiming its protection upon the merits of the case, he must submit to the obligations which the court places upon every litigant before it." The correctness of this ruling is challenged.

This precise question does not appear to have been decided. It has been determined that a valid personal judgment cannot be rendered against a non-resident defendant who is not served with process within the State and who does not appear. When property of a non-resident defendant is attached within the State, valid judgment may be entered, enforceable against such property, but possessing no further validity unless such non-resident defendant is served personally with process within the State, or appears. Lowrie v. Castle, 198 Mass. 82, 89. Eliot v. McCormick, 144 Mass. 10. Pennoyer v. Neff, 95 U. S. 714. Freeman v. Alderson, 119 U. S. 185. A non-resident defendant may ignore the proceedings in the courts

1 Affirmed, s.C., 20 Wall. 8 (U. S. 1873). See, accord, The Dupleix, [1912] P. 8 (no withdrawal of appearance); Conn v. Caldwell, 6 Ill. 531 (1844) (same). Compare Pennsylvania Co. v. United Rys., 26 F. Supp. 379, 382 (D. Me. 1939) (withdrawal of inadvertent general appearance by leave of court). But an appearance for the sole purpose of attacking the validity of the attachment or garnishment does not give the court jurisdiction to render a personal judgment. See Davis v. Cleveland, C., C. & St. L. Ry. Co., 217 U. S. 157, 174 (1910); Oliver v. Kinney, 173 Ala. 593 (1911).

2 By Morton, J.-NOTE BY THE COURT.

of another jurisdiction when not served with process in that other jurisdiction and when no valid attachment of his property has been made. When attempt is made to affect his rights by judgment obtained in the absence of service of process or attachment of property, he may show its invalidity in the courts of any forum, either under the "full faith and credit" clause of the federal constitution or under general principles of international comity. Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159, 206, 214. Brown v. Fletcher, 210 U. S. 82. Perhaps it would be competent for the Legislature to enact, without violating any provision of the federal constitution, that no one may voluntarily appear in our courts to contest any question there pending, even when some of the property is held under attachment, without at the same time submitting himself wholly to the jurisdiction of our courts for all purposes of the proceeding. York v. Texas, 137 U. S. 15. Western Life Indemnity Co. v. Rupp, 235 U. S. 261, 272. Coe v. Armour Fertilizer Works, 237 U. S. 413, 426.

But that question is not now presented and expressly is left open. R. L. c. 170, § 1, which governs this matter, makes no such provision. This section has been construed with some strictness. Roberts v. Anheuser Busch Brewing Association, 215 Mass. 341. Its final clause does not deny full effect to a judgment rendered after a general appearance, even without service. Gahm v. Wallace, 206 Mass. 39. But it does not disclose purpose to impose upon a nonresident defendant the burden of entering a general appearance in order to protect his property rights so far as they are put in peril by 'effectual attachment of his property upon the original writ. It does not by apt words cover a situation like that now presented. So far as there is implication from the words used, it seems to be that the action shall not be maintained without service with process within this Commonwealth (unless there is voluntary general appearance) except so far as it may affect property held under effectual attachment. The provisions for notice to a non-resident defendant in §§ 6 and 9 of the same chapter, do not manifest a purpose to compel him to appear generally if he appears at all. Indeed, reading §§ 1, 6 and 9 together, and giving them all appropriate force, they are quite satisfied by interprèting them to mean that when effectual attach⚫ment of property of a non-resident is made, the best kind of notice which can be given under the circumstances shall issue in order to afford him opportunity to come into court and be heard on the ques

1 That statute is as follows: "Section 1. A personal action shall not be maintained against a person who is not an inhabitant of this Commonwealth unless he has been served with process within this Commonwealth or unless an effectual attachment of his property within this Commonwealth has been made upon the original writ, and in case of such attachment without such service, the judgment shall be valid to secure the application of the property so attached to the satisfaction of the judgment, and not otherwise.” — NOTE BY THE COURT.

tion whether the property so attached ought to be held to satisfy a judgment in accordance with the terms of § 1. "The fundamental requisite of due process of law is the opportunity to be heard." Grannis v. Ordean, 234 U. S. 385, 394. "That to condemn without a hearing is repugnant to the due process clause of the Fourteenth Amendment needs nothing but statement." Riverside & Dan River Cotton Mills v. Menefee, 237 U. S. 189, 193.

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Treating the question as one of general law, quite uncontrolled by statute, the same result is reached. It was said by Chief Justice Parsons in Bissell v. Briggs, 9 Mass. 462, at page 468, "In order to entitle the judgment rendered in any court of the United States to the full faith and credit mentioned in the federal constitution, the court must have had jurisdiction, not only of the cause, but of the parties. To illustrate this position, it may be remarked that a debtor living in Massachusetts may have goods, effects, or credits, in New Hampshire, where the creditor lives. The creditor there may lawfully attach these, pursuant to the laws of that State, in the hands of the bailiff, factor, trustee, or garnishee, of his debtor; and on recovering judgment, those goods, effects, and credits, may lawfully be applied to satisfy the judgment; and the bailiff, factor, trustee, or garnishee, if sued in this State for those goods, effects, or credits, shall in our courts be protected by that judgment, the court in New Hampshire having jurisdiction of the cause for the purpose of rendering that judgment, and the bailiff, factor, trustee, or garnishee, producing it, not to obtain execution of it here, but for his own justification. If, however, those goods, effects, and credits, are insufficient to satisfy the judgment, and the creditor should sue an action on that judgment in this State to obtain satisfaction, he must fail, because the defendant was not personally amenable to the jurisdiction of the court rendering the judgment. And if the defendant, after the service of the process of foreign attachment, should either in person have gone into the State of New Hampshire, or constituted an attorney to defend the suit, so as to protect his goods, effects, or credits, from the effect of the attachment, he would not thereby have given the court jurisdiction of his person; since this jurisdiction must result from the service of the foreign attachment. It would be unreasonable to oblige any man living in one State, and having effects in another State, to make himself amenable to the courts of the last State, that he might defend his property there attached." This decision was one of the earliest upon that subject in this country. It always has been recognized as a leading authority. See Pennoyer v. Neff, 95 U. S. 714, 731. While the allusion to the injustice of requiring a non-resident to surrender himself wholly to the jurisdiction of the courts of a foreign State, in order to defend his property there attached, was by way of illustration rather than exact adjudication, it was employed to illuminate an essential step in the reasoning by which the decision was reached, and therefore was something more

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