Stephenson v. Davis , 56 Me. 73 ( 1868 )

Dickerson, J.

Three of the defendants, Richards, Adams and Hodgdon, filed a demurrer to the bill, alleging for cause of demurrer, that the bill discloses no grou'nd for relief against them in a court of equity; and further, that they are not, and were not at the time of filing said bill, as appears therein, residents of this State, and are not therefore subject to the jurisdiction of this Court as a court of equity.

As this Court has not general but limited jurisdiction in equity, it is necessary that the bill should show upon its face, that the Court has jurisdiction of the subject matter complained of. Whether the Court has such jurisdiction in a case, may be inquired into under a general or a special demurrer. May v. Parker, 12 Pick., 35; Boston Water Power Co. v. Boston & Worcester Railroad Co., 16 Pick., 516.

The question arises in the case at bar, whether this doctrine applies also when the objection is taken to the bill, that it shows upon its face that the defendants are residents of another State, and therefore not subject to the jurisdiction of this Court, as a court of equity. We see no material distinction between the two cases, and can find none made by the authorities. In both cases the requisite of a demurrer, that the matter must be apparent from the bill, is complied with, and the question is one of jurisdiction; the prayer, also, is for a dismissal of the bill, and the bill must be dismissed, if the objection is sustained, alike in both cases. There seems to be no adequate reason why a plea which is founded upon matter dehors the bill should be resorted to in the latter and not in the former case. This conclusion is in harmony with the well settled doctrine in equity, that a demurrer lies, when the case as presented, is not within the jurisdiction of a court of equity. Story’s Eq. PL, §§ 467, 472.

Moreover, it is to be observed that, in general, the fact that the property is not within the jurisdiction, constitutes no bar to a proceeding in a court of equity, if the person is within the jurisdiction; for a court of equity acts upon the person; esquitas agit in personam. Jurisdiction over the persons of the defendants is placed upon the same footing as jurisdiction over the subject matter of the bill; and, it would seem, that advantage may be taken of the want of either by the same mode of proceeding. Story’s Eq. PL, § 489.

It will not be claimed that this Court has equity jurisdiction over persons residents in another State, unless such service of the process in equity has been made as will give it jurisdiction, or the defendants have waived the want of such service. No personal service was ever made upon either of the persons who demurred to the bill; nor has any service whatever been made upon them by order of Court. The only service made, was an attachment of their real and personal property.

Sec. 9, ch. 77, R. S., provides that a bill in equity may be inserted in a writ to be served as other writs. The bill in this case was thus inserted, but the service required in such case by § 18, c. 81, R. S., was not made; and, if this was an action at law against the three defendants in question, this Coui’t would have no right to render any judgment against these persons or their property. Such a judgment, if rendered, would be void for want of jurisdiction in the Court. The case, as presented, is the same in substance as if no service whatever had been made of the bill, and it must be dismissed with respect to the demurring defendants with costs for them, but without prejudice to the plaintiff. Whether this Court would have had jurisdiction in equity over their persons, under the particular circumstances of this case, if the service required by statute bad .been made, need not now be decided. It will be time to decide that question when it is properly presented.

The other defendant, Davis, properly took advantage of a want of jurisdiction, by plea, as the ground relied upon was dehors the bill. Though the officer returned that he attached Davis’ real and personal property, yet it appeared from his plea that he did not own any property in this State, as the return sets forth, and, that when the statute service was made upon him, he was a resident of the Commonwealth of Massachusetts. If this Court has equity jurisdiction over him, a party plaintiff has only to procure an officer to make a nominal attachment of property, and then get the service completed by order of Court, to give this- Court jurisdiction in equity of any person who has been a resident of this State, though at the time he should be a resident of another State. It is clear that his plea must be adjudged good, and that the bill must be dismissed as to him, also, with costs.

In this view of the case, it becomes unnecessary to determine whether this Court, sitting as a court of equity, would have jurisdiction of the subject matter of the bill, in a ease properly presented.

Bill dismissed, with costs for the defendants,

and without prejudice to the plaintiff.

Kent, Barrows, Danforth and Tam,by, JJ., concurred in the result.