Badger v. Towle , 48 Me. 20 ( 1860 )

The opinion of the Court was drawn up by

Rice, J.

The Supreme Judicial Court of this State has general common law jurisdiction in all cases unless its powers are restricted by the constitution or by statute. R. S., 1841, c. 114, § 7.

In England and America suits in personal actions are maintainable, and maintained between foreigners, when either of them is within the territory of the State in which the suit is brought. Story’s Confl. of Laws, § 542.

This Court has jurisdiction in personal actions between parties not resident in the State, if the defendant is found and duly summoned when temporarily within the State. Barrell v. Benjamin, 15 Mass., 354; Nelson v. Omaley, 6 Maine, 218; Lovejoy v. Albee, 33 Maine, 414.

Where there has been an attachment of the property of a non-resident of the State, but no personal service upon the defendant, a judgment will bind the property but not the person. McVicker v. Beedy, 31 Maine, 314.

In the case at bar, the officer returns an attachment of the defendant’s property and a service upon his person, within his precinct.

Sect. 2 of c. 114, R. S., 1841, refers to cases where both parties reside within the State. Sect. 27, of same chapter, is directory, and has reference to cases where goods and estate are attached and where the defendant is resident out of the State and not personally summoned when in the State. Nelson v. Omaley, 6 Maine, 218.

The writ in this case, on its face, discloses no want of jurisdiction. It does not appear, therefore, that the plaintiff was not an inhabitant of, and resident within the State at the time the action was commenced.

The motion sets out the following facts: — “And the defendant says, that at the time of the issuing and service of said writ, he was an inhabitant and resident of Portsmouth, in the State of New Hampshire, and had no property in this State, and that the said plaintiff is now, and, at the time of the issuing and service of said writ was, and for the last three years has been a resident of Detroit, in the State of Michigan.”

Most of the facts therein set forth are issuable, and could be made available to the defendant, if at all, by plea and proof only, and not on motion, which is only available when the defect is apparent upon the record. Chamberlain v. Lane, 36 Maine, 388. Exceptions sustained.

Tenney, C. J., and Appleton, Davis, and Kent, JJ., concurred.