Kane v. Cook

Citations

• 8 Cal. 449

Syllabus

<p>A judgment obtained by publication of summons against a defendant then out of the State in which the judgment is rendered, though it may be enforced against his property in that State, has no binding force in personam, and is a mere nullity when attempted to be enforced in another State.</p> <p>As a recovery cannot be had upon such a judgment in another State, it is equally unavailing when offered in support of a plea of former recovery in an action upon the original demand.</p> <p>To hold otherwise would be to hold that the validity of the judgment depends not upon the jurisdiction of the Court, but upon the manner in which it is pleaded.</p> <p>The liability of a consignee to his principal, for the proceeds of sales made, accrues, in the absence of original instructions to remit proceeds on sale, on demand, or instructions to remit, and not upon receipt of proceeds by the consignee.</p> <p>And where instructions to remit are originally given, but the consignee forwards no account of sales, the right of action of the principal only accrues upon his knowledge of the sales and of receipt of the proceeds by the consignee.</p> <p>Nor does the fact that the principal had, at an earlier period, commenced an action in another State, where he resided, against the consignee to recover the proceeds, averring in his complaint, upon information and belief, that a sale had been made, fix that as the time when the liability accrued.</p> <p>It was the duty of the consignee not only to inform his principal of the sales, but to remit the proceeds. His neglect not only deprived his principal of his funds, but kept him in ignorance of his rights.</p> <p>To hold that the Statute of Limitations ran against the principal under such circumstances, would be to permit the consignee to take advantage of his own wrong, and to sustain a defence, of which, in conscience, he ought not to bo permitted to avail himself.</p> <p>Statutes of Limitations are intended to prevent the assertion of st