Continental National Bank v. Thurber — 57 N.Y. St. Rep. 226

Majority

p. 226

Continental National Bank of Boston, Resp’t, v. Horace K. Thurber et al., App’lts.

(Supreme Court, General Term, First Department,

Filed December 15, 1893.)

Headnote

Constitutional law—Substituted service.

Section 435 of the Code does not violate the constitutional provision that a person shall not he deprived of his property without due process of ' law.

Appeal from an order denying a motion to vacate an order permitting substituted service of a summons.

H. Aplington, for app’lt; James Byrne, for resp’t.

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 23d of the same month an order for the substituted service of it on the defendant was granted, pursuant to § 435 of the Code of Civil Procedure. 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 § 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. Thurbur; (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; (3) that § 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 5 and article 14 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.

p. 227

The motion was denied, and the 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 Constitution 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 jurisdiciion of resident defendants. Bl. Comm. 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. 2 Reeves, Eng. Law),Finlason’s Ed.), 308; 6 Bracton (Twiss’ Ed.), 477, et seq.; 2 Sell. Pr. (1st Amer. 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, Wyche’s Pr., 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; 40 St. Rep., 210 ; Mackay v. Gordon, 34 N. J. Law, 286 ; Pig. Judgm., 130; Schibsby v. Westenholz, L. R., 6 Q. B., 155. In the cast last cited, Lord Blackburn said:

“ How, 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 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 law 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.

The motion to vacate the order for substituted service was made upon the following grounds:

p. 228

“ (1) That this court had and has no jurisdiction over the person of defendant Horace EL Thurber herein; (2) that the papers upon which said order was granted were not sufficient to authorize the court or judge to grant said Order; (3) that the affidavits produced herein on behalf of said defendant Horace EL Thurber disclose the fact that the place of sojourn of said Horace EL Thurber could have been ascertained by the plaintiff or its attorneys; and for such other or further relief as to the court may seem just and proper.”

We think that the papers upon which the order was granted were entirely sufficient to authorize the court to grant it, and that the affidavits upon which the motion was heard do not disclose the fact that the place of sojourn could have been ascertained by the plaintiff or its attorneys. The opinion upon this question, delivered at special term, which was the only one discussed by the learned judge, clearly shows that sufficient facts were shown by the moving affidavits to justify the order.

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

All concur.