Martin v. Whitney , 74 N.H. 505 ( 1908 )

The motion to dismiss the action should be granted. The service of the writ upon the defendant was illegal, and the case does not disclose facts showing that a valid attachment was made. When the writ was served upon the defendant he was not a resident of this state, but was here attending a hearing in an equity proceeding in which he was interested as party and witness. Non-resident witnesses and non-resident parties as witnesses are privileged from arrest or summons upon civil process while in attendance upon, going to, or returning from the trial of cause in the courts of this state, and an action thus begun is subject to abatement for want of proper service. Hubbard v. Sanborn, 2 N.H. 468; State v. Buck, 62 N.H. 670; Ela v. Ela, 68 N.H. 312, 313, and cases there cited; Dickinson v. Farwell,71 N.H. 213; In re Healey, 53 Vt. 694; Parker v. Marco, 136 N.Y. 585; Larned v. Griffin, 12 Fed. Rep. 590; 1 Gr. Ev., ss. 316, 317; 22 Am. Eng. Enc. Law (1st ed.) 163-166.

By the service of process upon the trustee the court did not acquire jurisdiction of the action, because no money, goods, chattels, rights, or credits of the defendant were in the hands or possession of the trustee. The case states that "the trustee was not indebted to the defendant individually and did not possess any goods or chattels of the defendant at the time of the service of the writ, nor has it since possessed such." The claim against the railroad for burning the lumber does not belong to the defendant, but to a copartnership of which the plaintiff, the defendant, and another are members, and is unliquidated. If the claim were liquidated it would still be problematical what interest, if any, the defendant might have in it as an asset of the firm; for an accounting of the partnership affairs has not been had, and the firm, if it properly could be, has not been made a party to this proceeding. But the plaintiff in trustee process proceeds against the trustee upon the strength of the defendant's right and title, and in the absence of fraud can recover only what the defendant could against the trustee. Richards v. Railroad, 44 N.H. 127, 139; Forist v. Bellows, 59 N.H. 229, 231, 232; Tucker v. Chick, 67 N.H. 77, 79; Corning v. Records, 69 N.H. 390, 396, 397. The defendant could not maintain an action against the railroad for the destruction of the lumber; and this being so, no reason is apparent for acceding to the plaintiff's request to continue the action for notice to the defendant.

Action dismissed.

All concurred.