Opinion
No. 4645.
Submitted March 5, 1958.
Decided March 20, 1958.
1. Where the defendants to a transitory action on promissory notes were personally served with process in this state jurisdiction was properly conferred and the fact that the parties may be nonresidents or were in this state only temporarily was held immaterial.
2. Physical presence within the state is the traditional basis of jurisdiction at common law.
3. The Trial Court's finding, that there was not sufficient evidence to support a claim that the action was brought in this state to harass the nonresident defendant, was sustained.
ASSUMPSIT, brought by the plaintiff payee, a New York corporation, to recover upon notes payable in Massachusetts and executed jointly by the defendants, John L. Southwick, Jr., a New Hampshire resident, and Walter L. Southwick, a Massachusetts resident. Each defendant was personally served with process within this state and an attachment of any real estate they owned in Rockingham County in New Hampshire was duly made.
The defendants' bill of exceptions was drafted and allowed by the Court (Keller, J.) and reads in part as follows: "The defendants appeared specially by John L. Southwick, Jr. and filed a plea to the jurisdiction of the Court, claiming that the New Hampshire Courts do not have jurisdiction of the case, since Walter L. Southwick was a resident of Massachusetts and had no property in New Hampshire, John L. Southwick, Jr. claimed a residence in Massachusetts, besides being a resident of New Hampshire, and the plaintiff brought the action in New Hampshire to harass the defendants. There was a hearing on the plea; there was not sufficient evidence to establish the claim that the plaintiff brought the action in New Hampshire to harass the defendants nor to establish whether either defendant actually owned any property in Rockingham County to which the attachment would apply. The Court denied the plea and the defendants seasonably excepted."
Verdi McKay for the plaintiff, furnished no brief.
John L. Southwick, Jr., pro se, for the defendants, furnished no brief.
This is a transitory action (Emery v. Hovey, 84 N.H. 499) on promissory notes payable in Massachusetts brought by a New York corporation against the defendants, one of whom is a resident of this state, and the other a resident of Massachusetts. A court may acquire jurisdiction over an individual by personal service upon him within the state even though he may be here only temporarily. Restatement, Judgments, s. 15, comment a. If the individual is personally served with process within the state it is immaterial that he is domiciled elsewhere or that immediately after the service of process he leaves the state. Restatement, Conflict of Laws, s. 78. Physical presence within the state is the traditional basis of jurisdiction at common law. Restatement of the Law, Second, Conflict of Laws, s. 78, comment a (tentative draft No. 3, 1956). "If a citizen of another state is found here, and process is served on him personally, that gives the court jurisdiction." Libbey v. Hodgdon, 9 N.H. 394, 396. See Taplin v. Atwater, 297 Mass. 302; Young v. Ross, 31 N.H. 201. Consequently, cases in which jurisdiction has been denied where the defendant was a nonresident and not served with process within the state are inapplicable. Wyman v. Uphaus, 100 N.H. 1; Rosenblum v. Company, 99 N.H. 267, 269; Nottingham v. Company, 84 N.H. 419.
Since the defendants have no special immunity or privilege exempting them from service of process within the state, the defendants' plea to the jurisdiction was properly overruled. Pitman v. Cunningham, 100 N.H. 49. The Trial Court properly found that the claim that the action was brought in New Hampshire to harass the defendants was not established by sufficient evidence. There is no occasion for us to consider whether the action should be dismissed under the doctrine of forum non conveniens. Thistle v. Halstead, 95 N.H. 87.
Exceptions overruled.
All concurred.