Pond v. Simpson

Rugg, C. J.

This is a suit in equity by the plaintiff against the defendant Simpson, both residents of Maine, alleging a debt due from Simpson to the plaintiff and seeking to reach and apply in payment of that debt (1) a promissory note made by the defendants Smeeton and Haddon to the order of Simpson, now overdue, and (2) shares of stock in the defendant corporation owned by Simpson.

No personal service was made upon Simpson. The service by registered mail was insufficient to bring him in as a party and subject him to the jurisdiction of the court. •Simpson has not appeared generally. He appeared specially and filed a demurrer to the bill on grounds amounting in *328 substance to want of jurisdiction. It was a speaking demurrer, setting out certain facts in addition to those in the bill. It was overruled rightly. Its manifest purpose was to raise solely the question of jurisdiction over the defendant Simpson. It was,not the equivalent of a general appearance. If want of jurisdiction appeared on the face of the bill, a special appearance by a nonresident defendant, not served with process, for the purpose of demurring on that ground, would not be a general submission to the jurisdiction of the court. Rollins v. Bay View Auto Parts Co. 239 Mass. 414, 423 .

The defendant Simpson, still appearing specially, filed a plea to the jurisdiction, subsequently amended by leave of court, setting out (1) that he was not the holder of any shares of stock in the defendant corporation and (2) that the note referred to in the plaintiff’s bill was at all times in the possession of the defendant Simpson in the State of Maine. The trial judge found both these facts to be as averred in the plea, and also that the note was made and payable in Boston. The makers of the note cannot be held as trustees under equitable trustee process upon these facts when the note is not within the jurisdiction. That point is settled by Sanger v. Bancroft, 12 Gray, 365 .

Since Simpson had no interest in the stock of the defendant corporation, no jurisdiction over him was acquired by service on the corporation. Dondis v. Borden, 230 Mass. 73 . Warr v. Collector of Taxes of Taunton, 234 Mass. 279 .

No property of the defendant Simpson was attached in this jurisdiction. Therefore, since he was a nonresident and did not appear generally, he could not be held to answer to the suit in our courts. Cheshire National Bank v. Jaynes, 224 Mass. 14 . Pennoyer v. Neff, 95 U. S. 714 . Reynolds v. Missouri, Kansas & Texas Railway, 224 Mass. 379, 388 .

Decree dismissing bill affirmed with costs.