Charles W. Bartlett, Appellant, v. Alexander McNeil, Respondent

Charles W. Bartlett, Appellant, v. Alexander McNeil, Respondent. Where, in an action for tort against a non-resident, the summons is served by publication and judgment is perfected without an appearance of the defendant the judgment is not in personam, and proceedings under section 292 of the Code cannot be instituted against defendant to compel him to submit to an examination concerning his property; nor is the plaintiff entitled to a warrant for his arrest, as prescribed by said section, on account of his refusal to apply property in satisfaction of such judgment. A judgment in such a case was perfected in the ordinary form upon an assessment of damages by a sheriff’s jury. Upon motion of defendant the judgment was amended by inserting a statement that the defendant “was a non-resident upon whom no personal service was made, but who had property within the State liable to attachment.” The order thereon was affirmed on appeal to the General Term. On appeal from the order of General Term, held, that the amendment did not change the character or force of the judgment; that this court could not, upon such an appeal, determine the validity of the judgment, or whether it could be enforced against any property of defendant in the State; appeal therefore dismissed. (Argued February 2, 1875; decided February 9, 1875.) Appeal from order of the General Term of the Supreme Court in the first judicial department, affirming an order of the Special Term, amending the judgment herein, and affirming an order denying a motion to have the examination of defendant upon a warrant, issued under section 292 of the Code, proceeded with. (Reported below, 3 Hun, 221.) This action was brought to recover damages alleged to have been sustained by plaintiff in Hew Orleans, through defendant’s negligence. Defendant was a non-resident; the summons was served by publication. Defendant did not appear. The damages were assessed by a sheriff’s jury, and judgment thereon was perfected in the usual form. Defendant moved for a modification of the judgment, and the same was amended by inserting after the words “ the said plaintiff,” and before the words “do recover” the following,, “by reason of such publication, the defendant being a non-resident upon whom no personal service was made, but who had property within the State liable to attachment.” Prior to said motion plaintiff had procured the issuing of a warrant against defendant, under section 292 of the Code, for an alleged unjust refusal to apply property in satisfaction of said judgment, upon which warrant defendant was arrested, and entered into a bond for his future appearance for examination. Plaintiff thereafter moved that a day for the examination of defendant, under said section, be fixed, and that such examination proceed, which motion was denied. John H. Bergen for the appellant. The action being for a tort no attachment could issue. (Code, § 227; Gordon v. Gaffney, 11 Abb. Pr., 10.) An action for tort can be commenced by the publication of the summons. (Code, § 135, sub. 3; Shellington v. Howland, 53 N. Y., 374.) The judgment in this case is a judgment in personam. (Code, § 135, sub. 3 ; Woodruff v. Taylor, 20 Vt., 65; Doe v. Oliver, 2 Smith’s L. Cas. [7th Am. ed.], 622; Freeman on Judgts. [2d ed.], §§ 13, 606.) Edward H. Hobbs for the respondent. The court had not jurisdiction to render a judgment against defendant enforceable against his general property by ordinary methods for the collection of personal judgments. (Code, § 135, sub. 3; Meyer v. Van Collen, 28 Barb., 231; Story on Conflict of Laws, §§ 549, 592; Bradshaw v. Heath, 13 Wend., 416; Borden v. Fitch, 15 J. R., 121; Pauling v. Birds, 13 id., 206.) [MAJORITY — Andrews, J.] Andrews, J. The appeal from the order of the General Term, affirming the order of the Special Term, amending the judgment, must be dismissed, on the ground that the amendment did not change the character or force of the judgment as originally rendered, and the court cannot, in this proceeding, determine its validity, or whether it can be enforced against any property of the defendant which may be found at any time in this State. The order affirming the order of the Special Term, denying the motion that the court fix a time for the examination of the defendant, under section 292 of the Code, must be affirmed. The case of Schwinger v. Hickok (53 N. Y., 280), is decisive against the right of the plaintiff to proceed in personam against the defendant, by arresting him, as was done in this case, or for the purpose of compelling him to submit to an examination in respect to his property. All concur; Folger and Rapallo, JJ., not sitting. Ordered accordingly.