Wood v. Furtick

The plaintiff, a resident of the city of New York, sued the defendant, a resident of South Carolina, upon two assigned claims for merchandise sold and delivered in Maryland. The summons was served upon the defendant personally, without the staté, pursuant to an order for such service; and by means of an attachment which was issued against the property of the defendant, and served upon the managing agent, respectively, of the Phoenix Assurance Company, the Imperial Insurance Company, Limited, and the Royal Insurance Company, the plaintiff sought to reach the debts owing from such companies to the defendant in virtue of their several policies of insurance against loss by fire issued to him for property at his place of residence. Each of such insurance companies was a foreign corporation, having been organized under the laws of Great Britain, and having its principal office for the United States in the city of New York. The policies were severally issued in South Carolina, and the property insured was destroyed by fire before the commencement of this action. Before that time, the defendant also had assigned all his property, including the claims under the insurance policies, to Allen J. Green, of South Carolina, for the benefit of his creditors, by an instrument in writing, dated and delivered on the same day. Upon the motion of the defendant and his assignee, the levy of the attachment upon the debts due from the insurance companies was vacáted, and ah order to that effect entered, which was affirmed at general term below. The notice of motion to set the service of the attachment aside, or to vacate the levy attempted to be made thereunder, was not' served until upward of five months after the attachment was issued. It-was subscribed by the attorney, and the latter’s office and post-office address added’ but it did not expressly’qualify the defendant’s appearance in the action. Assuming the notice of motion to be a general appearance, the plaintiff’s attorneys,' after lapse of the time' for service of the defendant’s plead

Waiving the effect of the defendant’s assignment for the benefit of his creditors, and treating him to all intents and purposes as the owner of the several demands attempted to be attached, as the plaintiff’s counsel insists he should be, the service of the attachment, and the attempted levy thereunder, appear, notwithstanding, to have been rightfully vacated. The attachment proceeding was dependent for its validity upon the presence of the res—the debt—within the jurisdiction of the court, which was not here the case. The question involved was fully discussed by the court of appeals in Douglass v. Insurance Co., 138 N. Y. 209 , 33 N. E. 938 , where it was explicitly ruled that the situs of a debt is at the place of residence of the creditor; that the residence of a corporation is within the domain of the sovereignty which created it; that where neither the debtor whose property is sought to be attached, nor his debtor, is a resident of the state or country in which the attachment proceeding was brought, the court is without jurisdiction to make any adjudication involving the payment of the debt due from the last-mentioned nonresident to the first-mentioned one; and that no state or country can clothe its courts with such jurisdiction by enacting that service of process may for such purposes be made upon an agent or representative of the nonresident debtor of a nonresident whose property is sought to be applied in satisfaction of a resident creditor’s demand against him. It was held in that case that the attempted attachment in Massachusetts of a debt owing from a New York corporation to a resident of New York, service having been made upon the duly-appointed agent of the corporation in Massachusetts, was not a valid defense to an action in the courts of New York against the corporation by its creditor. We are referred by counsel for the plaintiff to a number of cases in other jurisdictions which are claimed to be at variance with the ruling above alluded to as to service of process upon an agent or attorney of a foreign corporation; but, obviously, the Douglass Case would be conclusive upon us even if .the opinion were less persuasive.

We are of the opinion that the service of the defendant’s notice of motion to vacate the service of the attachment, and the attempted levy thereunder, did not constitute a general appearance in the action. We are "referred by the counsel for the plaintiff to a number of cases, neither of controlling authority, which are to the effect that service of a notice of motion which does not expressly qualify the party’s appearance is equivalent to a general appearance in the action. The cases alluded to, however, are such as arose before the present Code of Civil Procedure, and such as followed them without

The order vacating the service of the attachment and the levy thereunder, and the order a farming such order, are affirmed, with costs. The order denying the motion "to vacate the judgment, and the order affirming such order, are reversed, with costs; and the judgment is vacated, with costs. All concur.