Green v. Farmers & Citizens' Bank

Hinman, J.

The parties in this ease are neither residents nor citizens of the state, and the defendants not having been served with process, the court obviously has no jurisdiction over the case for any purpose, unless a copy of the writ which was left with Thatcher T. Payne, as the attorney, agent, factor, trustee and debtor of the defendants, had the effect to attach any property there might be in his hands, belonging to the defendants, or any debt due from him to them. But Thatcher T. Payne was also a resident citizen of another state, and was only temporarily and transiently *454 here at the time the copy was left with him; so that the question is whether, under our foreign attachment process, such service is sufficient to enable the court to hold jurisdiction of the case, for the purpose of enabling the plaintiff to avail himself of any property in Payne’s hands, or any debt due by him to the defendants, in order to satisfy his claim against them. *

The plaintiff claims that his case is within the letter and spirit of our statute in respect to foreign attachments. That statute provides, that “ whenever the goods or effects of a debtor are concealed in the hands of his attorney, agent, factor or trustee, so that they can not be found to be attached, or where debts are due from any person to a debtor, any creditor may bring his action against such debtor,” &c. Rev. Stat., tit. i., sec. 229. This language, construed without any limitation to the meaning of the words, is undoubtedly comprehensive enough to cover the claim made by the plaintiff. But it appears to us very apparent that such was not the meaning of the legislature. The legislature were providing for the attachment of property concealed in the hands of residents or citizens of the state, and of debts due from such residents or citizens, and not of non-residents. Property in the hands of our own citizens, and debts due from them, are within the jurisdiction of the legislature; but property in the hands of non-residents and debts due from them are not; and the legislature must be supposed to have intended to make a law that could be executed, and not one which would be inoperative. It is not to be presumed that a party residing out of the state, who has the property of a debtor concealed in his hands, will voluntarily bring it here, in order that it may be taken and appropriated in payment of the owner’s debts ; and if he does not, any judgment against it here is entirely nugatory, as no process of our courts can reach either the trustee or the property in his hands ; and it is quite certain that our legislature would not attempt that which they so obviously have no power to accomplish. Again, our legislature did not intend, in a matter of this sort, that the j urisdiction of our courts should depend upon the *455 will of the garnishee in coming here, in order to give the courts jurisdiction over them; much less that it should depend upon the vigilance of a creditor, in being able to find him here transiently, and get a process served upon him before his departure from the state.

The debt of Payne, so far as it has any locality, is due in New York, where the creditor resides. In no sense has it any locality here, where neither the creditor nor debtor reside, and never had. And if the court should undertake to hold jurisdiction of the case, for the purpose of appropriating whatever may be due from him to the defendants for the plaintiff’s benefit, it would probably be treated as a nugatory act, by the courts of other states, where it is held that the trustee process will not lie against inhabitants of other states. Tingley v. Bateman, 10 Mass., 343 . Mart v. Anthony, 15 Pick., 445 . Nye v. Liscombe, 21 Pick., 263 .

Our conclusion is, therefore, that the service on Payne, while he was transiently in the" state, had no effect to give the court jurisdiction over any debt due from him to the defendants. And as no service whatever was made upon the defendants, the court has no jurisdiction over the parties, and the case, consequently, should be erased from the docket of the court.

In this opinion the other judges, Storrs and Ellsworth, concurred.

Case to be erased from the docket.