Fenton v. Garlick — 8 Johns. 194

Majority

p. 194

Fenton, Administrator of Ramsdall, against Garlick, Trustee of Garlick.

Headnote

A suit was com-in^he'1 srnte Ferj«o?z#,jgamst B.an absconding debtor, and in 1808, judgment ^as gwn against haf^mone* Sent to^pay'the plaintiff, it was plaintiff • should against the m°the haiidí of in"i soG^renioved t0, thls, st?te; where he had continued to reside, so that the execution was returned unsatisfied; and the court thereupon grantee] a rule on A. to show cause why the plaintiff should not have execution against him, of his own# proper goods, bee. which rule was served on A in this state, being an inhabitant thereof,* and he not appearing to show cause, a judgment was given against him, by the court in Vermont, for the whole of the debt, and execution awarded against his own estate. On this judgment against A. the plaintiff brought an action of debt in this state; and it was held, that to warrant the judgment against A. in his own person or property, there should have been a new suit against him, or a personal summons or notice, in the nature of a scire facias; and^ that tlie service of a rule to show cause upon him, in this state, being void, there was nothing to warrant the judgment, and that no action could he sustained upon it here.

THIS was an action of debt on a judgment obtained ^ s£ate Vermont. , From an authenticated copy 0f the record of the proceedings in Vermont, it appeared, that Ramsdall, in September, 1803, brought an action in ’ 1 . the county court of Addison county, against Seth Gar-as trustee of Samuel Garlick, an absconding or concealed debtor, for 77 dollars and 15 cents, of debt, on a judgment obtained by Ramsdall against Samuel Garlick, in March, 1803, alleging that Seth Garlick had in his possession money, goods, chattels, rights and credits of Samuel Garlick, to the value of 300 dollars; and the said Seth Gar lick appeared, and being sworn and interro 8ated> answered that he gave a note to Samuel Garlick for 600 dollars, which was still due, dated 1st of November, ’ ’ ’ 1802,payable in 5 years from the date, with interest: and r J J . the court, therefore, adjudged that the said Seth had mo- , - neys or the said Samuel in his hands, to the amount ot

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six hundred dollars, payable on the 1st of November, r J 1807; and the said Samuel not appearing, the cause was, by order of the court, continued from term to term, until August term, 1807, when the plaintiff and the said Seth appeared, by their attorneys ; but the said Samuel not appearing, notice was ordered to be given to him to appear at the next term of the court in February, 1808, by publishing the declaration and copy of the order, for three weeks successively, in the gazette printed at Mid dlebury, in the county of Addison.

At the term of February, 1808, Fenton appeared and informed the court, that Ramsdall had died, since the last continuance, and that he, the said Fenton, had been duly appointed his administrator, and prayed for leave"to enter and prosecute the action.as administrator, which was granted by the court. Seth Garlick also appeared, by attor- ■ ney,and the plain tiffprovedthe service of the notice to Samuel Garlick to appear, by a due publication thereof in the gazette, pursuant to the order of the court: and Samuel Garlick having been called, did not appear, but made default; on which the court gave judgment, that the plaintiff recover against the said Samuel Garlick his debt, and also his damages to 23 dollars and 39 cents, and costs, taxed at 32 dollars and 75 cents; and the court not being advised, as to the moneys of the said Samuel, in the hands of the said Seth Garlick, the cause was continued, without costs, to the said Seth, until August term, 1808, at which term the plaintiff and the said Seth appeared, by their attorneys; and it was ordered by the court, that the plaintiff, administrator, &c. have his execution for his debt, damages and costs, against the goods and chattels of the said Samuel, in the hands of the said Seth, after the 1st of November, 1808. On this judgment a writ of execution was issued, in February, 1809, on which the sheriff returned that he went to the usual place of abode of the said Seth Garlick, and made demand of the goods, &c. of the said Samuel Garlick,

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on which to levy and satisfy the said execution, but no goods, &c. were shown, nor were any found by him in his precincts, &c. and therefore he returned the execution wholly unsatisfied.

The court thereupon, on motion of the plaintiff, granted'a rule on the said Seth Garlick to appear at the. next term, and show cause, if any he had, why an execution should not issue on the said judgment against the said Seth, and his own proper goods, chattels and estate, &c.

At the next term, in August, 1809, the plaintiff appeared, and showed, by affidavit, that the said rule had been duly served on the said Seth Garlick, who, being thereupon called, did not appear and show cause, &c. but made default; whereupon the said court adjudged that the plaintiff should recover of the said Seth Garlick the amount of the said judgment rendered against the said Samuel, being 133 dollars and 29 cents, and also 12 dollars and 90 cents costs of suit, and that the plaintiff should have his execution against the said Seth, his own proper goods, chattels and estate, &c.

The cause was tried at the Montgomery circuit, in October,1810, before Mr. Justice Spencer. It was proved that the defendant, Seth Garlick, named in the record, had. resided in this state, since the year 1806, and that the rule to show cause mentioned in the record, on the affidavit of the service of which the judgment in Vermont was rendered against him and his own estate, was served upon him in this state, in June, 1809, he being then an inhabitant of this state, and residing in the county of Chenango; though when the proceedings were commenced against him, as trustee of Samuel Garlick, he resided in Vermont.

A verdict was taken for the plaintiff, for 184 dollars and 84 cents debt; and 10 dollars and 87 cents damages, subject to the opinion of this court on a case containing the above facts; and it was agreed, that if the court should

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be of opinion that the plaintiff was not entitled to recover, there should be a judgment of nonsuit.

The cause was submitted to the court, without argument.

This was an action of debt on a judgment obtained in Vermont against the defendant, as trustee of Samuel Garlick. The judgment was in the nature of one founded on the suggestion of a devastavit committed by the defendant, in the character of trustee, and against such a charge he was entitled to be heard. The mere fact of his having formerly had assets or moneys of Samuel Garlick in his hands, was not sufficient to authorize a judgment against his own property, in his individual capacity, until opportunity had been given to him to show in what manner he had disposed of those assets. This opportunity he has never had; for, at the time he was called upon to show cause, by a rule in the nature of a writ of scire facias, he resided in this state, and the service of that rule upon him, while within this state, (which fact was admitted,) was void, not only upon general principles, but by the express words of our statute, passed the 10th of August, 1798. (Sess. 22. c. 3.) The judgment consequent upon such a service cannot be regarded by this court as the ground of a suit; nor will an action be sustained upon a judgment obtained in another state against an inhabitant of this state, without any personal summons or sendee of process. This was so decided in Kilburn v. Woodworth, ( 3 Johns. Rep. 37 .) and in Robinson v. Executors of Ward. (Ante, 86.) The proceeding against the defendant, as trustee, in the year 1803, was not notice of any proceeding upon which this judgment was obtained, any more than a proceeding, in the first instance, against an executor or administrator, would be sufficient to warrant a judgment founded on a devastavit. The original suit, in both cases, is rather a proceeding in rem, than in personam. It is against the assets in the hands of the executor or trustee,

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belonging to the party whom they represent, and there must be a new suit, or a notice which is equivalent to it, before the trustee can be charged in his own private property or person, as for a breach of trust. There was no such new suit or notice to warrant the judgment in this case; and, consequently, no action can be sustained upon it in this state. Agreeably to the stipulation of the parties, a judgment of nonsuit must be entered.

Judgment of nonsuit.