PRIVILEGE FROM SERVICE OF PROCESS.

ALTHOUGH a nonresident temporarily within the state may ordinarily be served with process within the state and thereby subjected to the jurisdiction of a court of the state, there are circumstances under which a nonresident is privileged from service of process.1 A nonresident who comes into the state as a witness in a civil action is privileged from service of process, even though he is also a party to the action. Indeed, in some states it is sufficient that he is a party to the action even though he is not also a witness.3 The privilege is afforded on grounds of public policy, in order to promote the ends of justice. So also, a nonresident defendant in a criminal suit is in some states privileged from service of process in a civil action.* There is a division of judicial opinion as to whether a nonresident attorney conducting litigation in the state is thus privileged.5

A person who is induced to come into the state by fraud or who is brought in by force may be privileged from service of process."

In these cases, however, the court does not lack jurisdiction and a judgment based on a decision that no privilege existed, while it might be erroneous as a matter of state law, would not be void under the Fourteenth Amendment. Moreover, if the defendant does not claim his privilege, he waives it.

with or without an exhibition of the original; or by reading the summons or explaining its contents. See Restatement, Judgments, § 15, Comment d.

As to how far the defendant may prevent service by refusing to hear the summons read, or by refusing to receive a copy of it, or otherwise, see Boggs v. Inter-American M. & S. Co., 105 Md. 371, 384-385 (1907); Slaght v Robbins, 1 Green (13 N. J. L.) 340 (1833); Borden v. Borden, 63 Wis. 374 (1885). Cf. Wm. Krotter & Co. v. Norton, 84 Neb. 137 (1909). Compare Heath v. White, 2 Dowl. & L. 40 (Q. B. 1844) (defendant behind closed window); Davison v. Baker, 24 How. Pr. 39 (N. Y. 1862) (violently thrusting papers upon defendant); Correll v. Granget, 12 Misc. 209 (N. Y. 1895) (mere deposit of summons in presence of defendant without stating its nature).

1 See Restatement, Judgments (1942) § 15, Comments b, c; Note, 85 A. L. R. 1340 (1933).

2 As to the immunity of a nonresident requested or required to remain in the state pending the investigation of an accident, see Note, 59 A. L. R. 51 (1929).

3 As to the immunity of a nonresident while in the state for the purpose of settling a controversy, see Note, 93 A. L. R. 872 (1934).

* See Note, 14 A. L. R. 771 (1921), supplemented in 40 A. L. R. 93 (1926), 46 A. L. R. 316 (1927), and 65 A. L. R. 1370 (1930).

5 See Note, 71 A. L. R. 1399 (1931).

6 But it has been held that there is no such privilege against deceitful service on a nonresident already in the State. See 49 Harv. L. Rev. 844 (1936).

CONTINENTAL NATIONAL BANK v. THURBER.

GENERAL TERM OF THE SUPREME COURT, NEW YORK, First DEPARTMENT.

1

74 Hun 632.

1893.

FOLLETT, J: This action was brought to recover of the appellant the amount due on a bill of exchange, dated January 18, 1893, drawn and payable at the city of New York, and indorsed by the defendant at that city. When the bill was drawn the defendant was, and has ever since remained, a resident citizen of this State. The summons in this action was issued August 10, 1893, and on the twenty-third of the same month an order for the substituted service of it on the defendant was granted, pursuant to section 435 of the Code of Civil Procedure.2

August 23, 1893, the summons and order were served on the defendant by leaving copies of them at his residence with a person of proper age, pursuant to said order and section 436 of the Code. The defendant failed to appear in the action, and September 16, 1893, judgment was entered against him, which he moved to vacate on the following grounds:

"1. That the court had not, at the date the said order for substituted service was made, nor at the date said judgment was rendered, jurisdiction over the person of said Horace K. Thurber.

"2. That said judgment, being a personal judgment, is void, as there has been no personal service of the summons herein upon said Horace K. Thurber.

1 A preliminary statement of facts also stated in the opinion is omitted.

2 This section provided as follows: "Where a summons is issued in any court of record, an order for the service thereof upon a defendant residing within the State may be made by the court or a judge thereof, or the county judge of the county where the action is triable, upon satisfactory proof, by the affidavit of a person, not a party to the action, or by the return of the sheriff of the county where the defendant resides, that proper and diligent effort has been made to serve the summons upon the defendant, and that the place of his sojourn cannot be ascertained, or, if he is within the State, that he avoids service, so that personal service cannot be made."

Section 436 of the N. Y. Code of Civil Procedure provided as follows: "The order must direct, that the service of the summons be made, by leaving a copy thereof, and of the order, at the residence of the defendant, with a person of proper age, if upon reasonable application, admittance can be obtained, and such a person found who will receive it; or, if admittance cannot be so obtained, nor such a person found, by affixing the same to the outer or other door of the defendant's residence, and by depositing another copy thereof, properly inclosed in a post-paid wrapper, addressed to him, at his place of residence, in the post-office at the place where he resides."

For the present statutory provisions on this matter, see N. Y. C. P. A. §§ 230-231.

"3. That section 435 of the New York Code of Civil Procedure, under which said order for substituted service was made, is unconstitutional, being contrary to the provisions of article V and article XIV of the amendments to the Constitution of the United States.

"4. That said judgment was so rendered against said Horace K. Thurber without due process of law."

The motion was denied and said defendant appeals from the order. The appellant's sole point, which he has divided into four, is that the court did not acquire jurisdiction to render a personal judgment against him, not because all of the steps required by the Code were not duly taken, but because the legislation establishing the procedure. for the substituted service is violative of the provision of the Constitutions of the United States and of this State, that a person shall not be deprived of his property without due process of law. A citizen of a State is bound by its laws, both substantive and those regulating judicial procedure. Acquiring jurisdiction of resident defendants by constructive service of process is a proceeding according to the course of the common law, and is due process of law. This kind of service was not unknown to the common law, but was an authorized mode by which the English courts of law, and of equity, from the earliest times acquired jurisdiction of resident defendants. (3 Black. Com. 383, 445.)

Anciently, if a citizen refused to appear and answer to the process of the courts of England he was outlawed and his property taken to satisfy the just demands of his creditors.1 (2 Reeves' Hist. Eng. Law [Finlason's ed.], 308; 6 Bracton [Twiss' ed.], 477, et seq.; 2 Sellon's Pr. [1st Am. ed.], 277.) "

In this State outlawries in personal actions were regulated by chapter 9 of the Laws of 1787, and the practice in such cases is stated in chapter 10 of Wyche's Practice, the first work published on the procedure of the courts of this State.

Every sovereignty has power to regulate the procedure of its courts and prescribe the rights which plaintiffs may acquire and the liabilities which may be imposed on resident defendants by judgments recovered in its tribunals. (Hunt v. Hunt, 72 N. Y. 217; Rigney v. Rigney, 127 id. 408; Mackay v. Gordon, 34 N. J. Law, 286; Piggott, For. Judg. 130; Schibsby v. Westenholz, L. R. [6 Q. B.] 155.)

3

In the case last cited Lord Blackburn said: "Now, on this we think some things are quite clear on principle. If the defendants had been, at the time of the judgment, subjects of the country whose judgment is sought to be enforced against them, we think that its laws would have bound them. Again, if the defendants had been, at the time.

1 On outlawry, see 3 Holdsworth, History of English Law (5th ed. 1942) 604-607; 9 id. (3d ed. 1944) 254-255.

2 Square brackets in original report.

3 Square brackets in original report.

when the suit was commenced, resident in the country, so as to have the benefit of its laws protecting them, or, as it is sometimes expressed, owing temporary allegiance to that country, we think that its laws would have bound them." This was said in an action brought to recover on a judgment recovered against the defendants in France. The defendants were not domiciled in France nor subject to the jurisdiction of the French court. They had no notice nor knowledge of the proceedings, and did not appear in the action. All countries having judicial systems provide modes by which resident citizens can be bound by the judgments of its courts without personal service of the process, and abstracts of the statutes of many States and countries will be found in Piggott on Judgments.1

The orders should be affirmed, with ten dollars costs on each appeal.

VAN BRUNT, P. J., and PARKER, J., concurred. . . .3

1 The remainder of the opinion, in which the court held that the papers on which the order of substituted service was granted were sufficient, is omitted. 2 The opinion of Ingraham, J., at Special Term is omitted.

3 Affirmed on opinion below, sub nom. Continental National Bank v. American Book Co., 143 N. Y. 648 (1894).

A personal judgment against a resident may be valid although he was not personally served with process within the state. See Nelson v. Chicago, B. & Q. R. R. Co., 225 Ill. 197 (1907) (service by publication); Sturgis v. Fay, 16 Ind. 429 (1861) (service by leaving copy at last place of residence). Contra: De la Montanya v. De la Montanya, 112 Cal. 101 (1896) (service by publication); Raher v. Raher, 150 Ia. 511 (1911) (service outside the state). Cf. Rawstorne v. Maguire, 265 N. Y. 204 (1934). See Restatement, Judgments (1942) § 16.

The courts of other jurisdictions will recognize the validity of such a judgment. See Schibsby v. Westenholz, L. R. 6 Q. B. 155, 161 (1870) (semble); Ouseley v. Lehigh Valley Trust Co., 84 Fed. 602 (C. C. E. D. Pa. 1897); Bryant v. Shute's Exr., 147 Ky. 268 (1912) (service by leaving copy at last place of residence); Harryman v. Roberts, 52 Md. 64, 75 (1879) (service by leaving copy at last place of residence); Henderson v. Staniford, 105 Mass. 504 (1870) (service by publication).

In Milliken v. Meyer, 311 U. S. 457 (1940), it was held that a judgment in personam against a defendant rendered in the state of his domicil on per-. sonal service outside the state is entitled to full faith and credit in other states.

The provisions of the statutes allowing service on residents other than personal service, must be strictly complied with. See Park Land & Improvement Co. v. Lane, 106 Va. 304 (1906). As to service by registered mail, see Fourth Annual Report of the Judicial Council of the State of New York (1938) 187209.

In the United States, a citizen of the United States resident in a state is a citizen of that state by virtue of the Fourteenth Amendment to the Constitution, so that the question of jurisdiction to render a personal judgment on substituted service based on citizenship or nationality against one owing allegiance to the state but not residing therein does not arise except with respect to judgments of foreign countries. As to this problem, compare Douglas v. Forrest, 4 Bing. 686 (C. P. 1828), with Grubel v. Nassauer, 210 N. Y. 149 (1913). See also Blackmer v. United States, 284 U. S. 421 (1932), holding that a citizen of the United States resident in France may be served there with a subpoena issued pursuant to statute by a federal court in this country and that

MCDONALD v. MABEE.

SUPREME COURT OF THE UNITED STATES. 1917.

243 United States 90.

ERROR to the Supreme Court of the State of Texas.

MR. JUSTICE HOLMES delivered the opinion of the .court.

This is a suit upon a promissory note. The only defence now material is that the plaintiff had recovered a judgment upon the same note in a previous suit in Texas which purported to bind the defendant personally as well as to foreclose a lien by which the note was secured. When the former suit was begun the defendant, Mabee, was domiciled in Texas but had left the State with intent to establish a home elsewhere, his family, however, still residing there. He subsequently returned to Texas for a short time and later established his domicile in Missouri. The only service upon him was by publication in a newspaper once a week for four successive weeks after his final departure from the State, and he did not appear in the suit. The Supreme Court of the State held that this satisfied the Texas statutes and that the judgment was a good personal judgment, overruling the plaintiff's contention that to give it that effect was to deny the constitutional right to due process of law. 175 S. W. Rep. 676.

The foundation of jurisdiction is physical power, although in civilized times it is not necessary to maintain that power throughout proceedings properly begun, and although submission to the jurisdiction by appearance may take the place of service upon the person. Michigan Trust Co. v. Ferry, 228 U. S. 346, 353. Pennsylvania Fire Insurance Co. v. Gold Issue Mining & Milling Co., decided to-day, [243 U. S.] 93. No doubt there may be some extension of the means of acquiring jurisdiction beyond service or appearance, but the foundation should be borne in mind. Subject to its conception of sovereignty even the common law required a judgment not to be contrary to natural justice. Douglas v. Forrest, 4 Bing. 686, 700, 701. Becquet v. MacCarthy, 2 B. & Ad. 951, 959. Maubourquet v. Wyse (1867), 1 Ir. Rep. C. L. 471, 481. And in States bound together by a Constitution and subject to the Fourteenth Amendment, great caution should be used not to let fiction deny the fair play that can be secured only by a pretty close adhesion to fact. Baker v. Baker, Eccles & Co., 242 U. S. 394.

There is no dispute that service by publication does not warrant a personal judgment against a non-resident. Pennoyer v. Neff, 95

a fine for contempt of court based on failure to respond to such subpoena may validly be imposed. Cf. Hammerstein v. Lyne, 200 Fed. 165 (W. D. Mo. 1912). See Restatement, Judgments (1942) § 17.