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In Bank. Section 12th provides “that the defendant may appear and
erm, make defence before judgment, and if judgment be rendered 1846.
« for the plaintiff, it shall have the same force and effect as if
These are all the provisions appearing to relate to the ques-
The record shows a scire facias and judgment therein, August 28, 1837, against the garnishee.
The record also shows that a fieri facias issued against the garnishee, and that the lands attached were condemned November 24, 1837.
According to section 9, above cited, the condemnation under the execution could not take place without bond being given by the plaintiff. It must therefore be presumed, in favor of the proceeding, that bond was given. If given, the defendant, according to the further provisions of the same section, had a year and a day, which would expire on the 26th November, 1838, to disprove or avoid the debt. If not disproved or avoided within that time, the fair construction is, we think, that the judgment, as well as the right of the plaintiff to retain the proceeds of the property, becomes absolute. .
If it were disproved or avoided, the fact, if relied upon by the defendant, should be pleaded. The provisions of the 12th section are quite distinct in declaring the effect of the judgment when the defendant appears, provided the effect of a judgment in a case commenced by summons be known. But we submit that it does not follow that the judgment by default . is destitute of effect, because the Legislature has seen proper to declare the effect where there is an appearance. We think the effect of the judgment, where the defendant appears, would have been the same if its effect had not been declared, that it is declared to be, by the provision referred to. And by the same process of reasoning, the effect of the judgment by default flows as a necessary consequence from the judgment, without its being declared. It is a general judgment, ascertaining the ...: amount of the debt by a court of competent jurisdiction, in a
cause duly brought before it, according to the laws of the State, Is Bank. for adjudication.
H. Stanbery, (Attorney General,) for Defendant.
This case is supposed to depend on the force and effect of this judgment in Pennsylvania. If it is simply a proceeding in rem, no one pretends it has any validity here - but if the judgment operates beyond the property attached, so as to establish a debt in personam, it is claimed on the other side it must have a like effect here.
It is understood that this Court recognize such a distinction, and incline to give extra territorial effect to judgments in foreign attachment, wholly exparte, if the courts of the State, where they are rendered, give effect to them beyond the property attached..
In this particular our Court is directly at variance with all the most enlightened State courts. There is a surprising uniformity of decision, to the effect that a judgment wholly ex parte, without service upon, or appearance by the defendant, is totally void out of the State in which it is rendered as against persons not citizens of that State. Bissell v. Briggs, 9 Mass. Rep. 462; Thurber v. Blackburn, 1 N. H. Rep. 242; Whittier v. Wendell, 7 N. H. Rep. 257; Rangely v. Webster, 11 N. H. Rep. 299; Hull v. Williams, 6 Pickering, 232; Starbuck v. Murray, 5 Wend. 148; Roberts v. Caldwell, 5 Dana Rep. 512; Holt v. Alloway, 2 Blackford Rep. 108.
The whole difficulty upon this question arose out of the loose language of Judge Story, in Mills v. Duryee — construing, faith and credit, as meaning force and effect. All judgments are in that case declared to have the same force in a sister State which they have in the State where the judgment was .. first rendered. But the absurdity and gross injustice of giving conclusive effect to an ex parte judgment, soon became apparent, and it was found necessary to qualify that decision.
In Bank. It was supposed the case of Bennett v. Morley, 10 Ohio Term, Rep. 100, had fixed the rule in Ohio, in conformity with the
current of decisions in the other States. The Court in that case, after noticing the cases of Hall v. Williams, and Starbuck v. Murray, say : “ These decisions necessarily followed
after the qualification which had been given to the case of • Mills v. Duryee, by the very court in which it was heard. • They seemed to be indispensable in order to give import and meaning to the distinction between those proceedings where the party has had a day in court, and those where he had not.”
It is now understood, that our Court does not adhere to what was said in that case, but proceeds upon the distinction already stated. The consequence necessarily is, that our citizens are at the mercy of the wildest legislation of any State in the Union. If Texas enacts a law that a judgment in her courts, without process or pleadings or any service on the defendant, shall be conclusive there, it is to be taken as conclusive in Ohio simply because it must have the same force and effect in Ohio that it has in Texas. Any one of our citizens, who has never been within a thousand miles of Texas, may be made a beggar by that doctrine.
Fortunately for the defendant in this case, the distinction saves him. This judgment in foreign attachment, as the defendant never appeared to make a defence in the case, is strictly a proceeding in rem, and has no force or effect beyond the property attached, even in Pennsylvania. See the Statute of Pennsylvania as to Foreign Attachment, in Purden's Digest, 5th edition, p. 436, &c.
It is strangely contended by the counsel for the plaintiff, against the clear language of this statute, that it is a judgment in personam, and has force and effect, as such, beyond the property attached. There is not a syllable in the whole law which can be tortured into that construction. Without going over the different sections, it is sufficient to refer to the 12th, which provides “ that the defendant may appear and make de
fence before judgment, and if judgment be rendered for the in BANK. plaintiff, it shall have the same force and effect as if com- Dec. 1
1816. menced by summons.”
Now it happens in the case 'at bar, that the defendant did not appear and make defence, so that instead of becoming a proceeding in personam, it ended, as it began, in rem.
I have looked very carefully into the Pennsylvania Reports, but can find nothing to countenance the idea that the judgment in attachment, where the defendant does not appear, is any thing but a proceeding in rem.
In McClenachan v. McCarty, 1 Dall. 403, counsel, speaking of this proceeding, say: '“ In this action the plaintiff acquires no general lien by his judgment as in other actions, but can
only issue execution against the property attached.” Shippen, President, says, in the same case, that their attachment act of 1705 is modeled after the attachment upon the custom of London ; that it is strictly an ex parte proceeding until the defendant appears.
In Flannagan v. Wetherill, 5 Wharton, 286, the Court say: - Such judgment in foreign attachment, it is true, is not con
clusive to every purpose, but as to the property attached and • ultimately made liable, it is conclusive as a proceeding in rem.”
In Hawley v. Lumberman's Bank, 10 Watts, 232, it is said : - The nature of an attachment, as used in this State, seems to be a process not directly issued against the defendant himself or property in his possession, but to seize and secure property of defendant in the hands of some other person.”
It would seem, from the Statute of Pennsylvania, and from what is said in the foregoing cases, that the foreign attachment in that Státe, where the defendant does not appear, has no effect, even there, beyond the property attached..
In Pelton v. Platner, 13 Ohio Rep. 218, this Court treated a judgment in attachment, rendered in Michigan, as of no validity in Ohio, there being no service on the defendant.
In the same case, the Court reaffirm the doctrine, that if such a judgment had a' further effect in personam in Michigan, it would have equal effect in Ohio. .
Ix Bask. Although this case does not require the defendant to combat Dec. Term, that doctrine, I trust the Court will not consider a few observa• 1846.
tions upon it as out of place.
I have not found an authority in any other State that will support it. Every where, even among the strongest advocates for the full faith and credit clause of the constitution, it is admitted that the court rendering the judgment must have jurisdiction before any effect can be given to such judgment in a new jurisdiction or in another State.
Surely no one has gone further than Mr. Justice Story in giving force to foreign judgments, and yet in Picquet v. Swan, 5 Mason, 42, he uses this language: “I have already intimated
that no sovereignty can extend its process beyond its territorial • limits, to subject either persons or property to its judicial de(cisions. Every exertion of authority beyond this limit is a nullity, and incapable of binding persons or property in any other tribunals. If a State were to pass an act declaring that upon personal notice of a suit brought against a foreigner, resi
dent in a foreign country, proceedings might be had against • him, and a judgment obtained in invitum, for aught I know,
the local tribunals might give a binding efficacy to such judgments; but elsewhere, they would be utterly void, as an usurpation of general sovereignty over independent nations and their subjects.” Again he says:
“Where a party is within a territory, he may justly be subjected to its process and bound personally by the judgment pronounced, on such process, against him. Where he is not within such territory, and is not personally subject to its laws, if, on account of his supposed or actual property being within the territory, process by the local laws may, by attachment, 'go to compel his appearance, and for his default to appear,
judgment may be pronounced against him, such a judgment must, upon general principles, be deemed only to bind him to the extent of such property, and cannot have the effect of a conclusive judgment in personam, for the plain reason that, except so far as the property is concerned, it is a judgment