(ii) pennoyer v. neff

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Page 1: (II) Pennoyer v. Neff

163VD4Time of Request: Tuesday, June 24, 2014 04:04:02 ESTClient ID/Project Name:Number of Lines: 920Job Number: 1825:469096561

Research Information

Service: LEXSEE(R) FeaturePrint Request: Current Document: 1Source: Get by LEXSEE(R)Search Terms: 95 US 714

Send to: MADEJA, MARIAOFFICE OF THE SOLICITOR GENERAL134 AMORSOLO ST LEGASPI VILLAGEMAKATI CITY, PHL 1229

Page 2: (II) Pennoyer v. Neff

WarningAs of: Jun 24, 2014

PENNOYER v. NEFF.

SUPREME COURT OF THE UNITED STATES

95 U.S. 714; 24 L. Ed. 565; 1877 U.S. LEXIS 2227; 5 Otto 714

January 21, 1878, Decided; OCTOBER, 1877 Term

PRIOR HISTORY: [***1] ERROR to the CircuitCourt of the United States for the District of Oregon.

This action was brought by Neff against Pennoyerfor the recovery of a tract of land situated in MultnomahCounty, Oregon. Pennoyer, in his answer, denied Neff'stitle and right to possession, and set up a title in himself.

By consent of parties, and in pursuance of theirwritten stipulation filed in the case, the cause was tried bythe court and a special verdict given, upon whichjudgment was rendered in favor of Neff; whereuponPennoyer sued out this writ of error.

The parties respectively claimed title as follows:Neff, under a patent issued to him by the United States,March 19, 1866; and Pennoyer, by virtue of a sale madeby the sheriff of said county, under an execution sued outupon a judgment against Neff, rendered Feb. 19, 1866, bythe Circuit Court for said county, in an action wherein hewas defendant, and J. H. Mitchell was plaintiff. Neff wasthen a non-resident of Oregon.

In Mitchell v. Neff, jurisdiction of Neff was obtainedby service of summons by publication. Pennoyer offeredin evidence duly certified copies of the complaint,summons, order for publication of summons, [***2]affidavit of service by publication, and the judgment in

that case; to the introduction of which papers the plaintiffobjected, because, 1, said judgment is in personam, andappears to have been given without the appearance of thedefendant in the action, or personal service of thesummons upon him, and while he was a non-resident ofthe State, and is, therefore, void; 2, said judgment is notin rem, and, therefore, constitutes no basis of title in thedefendant; 3, said copies of complaint, &c., do not showjurisdiction to give the judgment alleged, either in rem orpersonam; and, 4, it appears from said papers that noproof of service by publication was ever made, theaffidavit thereof being made by the "editor" of the"Pacific Christian Advocate," and not by "the printer, orhis foreman or principal clerk." The court admitted theevidence subject to the objections.

The finding of the court in regard to the facts bearingupon the asserted jurisdiction of the State court is asfollows: --

That on Nov. 13, 1865, Mitchell applied to saidCircuit Court, upon his own affidavit of that date, for anorder allowing the service of the summons in said actionto be made [***3] upon Neff, by publication thereof;whereupon said court made said order, in the wordsfollowing: "Now, at this day, comes the plaintiff in hisproper person, and by his attorneys, Mitchell and Dolph,and files affidavit of plaintiff, and motion for an order of

Page 1

Page 3: (II) Pennoyer v. Neff

publication of summons, as follows, to wit: 'Now comesthe plaintiff, by his attorneys, and upon the affidavit ofplaintiff, herewith filed, moves the court for an order ofpublication of summons against defendant, as required bylaw, he being a non-resident;, and it appearing to thesatisfaction of the court that the defendant cannot, afterdue diligence, be found in this State, and that he is anon-resident thereof, that his place of residence isunknown to plaintiff, and cannot, with reasonablediligence, be ascertained by him, and that the plaintiff hasa cause of action against defendant, and that defendanthas property in this county and State, it is ordered andadjudged by the court that service of the summons in thisaction be made by publication for six weeks successivelyin the 'Pacific Christian Advocate,' a weekly newspaperpublished in Multnomah County, Oregon, and this actionis continued for such service." That [***4] the affidavitof plaintiff, referred to in said order, is in the wordsfollowing: "I, J. Mitchell, being first duly sworn, say thatthe defendant, Marcus Neff, is a nonresident of this State;that he resides somewhere in the State of California, atwhat place affiant knows not, and he cannot be found inthis State; that plaintiff has a just cause of action againstdefendant for a money-demand on account; that this courthas jurisdiction of such action; that the defendant hasproperty in this county and State." That the complaint insaid action was verified and filed on Nov. 3, 1865, andcontained facts tending to prove that at that date saidMitchell had a cause of action against said Neff forservices as an attorney, performed "between Jan. 1, 1862,and May 15, 1863." That the entry of judgment in saidaction contained the following averments: "And itappearing to the court that the defendant was, at the timeof the commencement of this action, and ever since hasbeen, a non-resident of this State; and it further appearingthat he has property in this State, and that defendant hadnotice of the pendency of this action by publication of thesummons for six successive weeks in the 'Pacific [***5]Christian Advocate,' a weekly newspaper of generalcirculation published in Multnomah County, State ofOregon, the last issue of which was more than twentydays before the first day of this term." That the affidavitshowing the publication of the summons in the"Advocate" aforesaid was made as stated therein by the"editor" of that paper. That said complaint, summons,affidavit of Mitchell and of the "editor" of the "Advocate"aforesaid, and entry of judgment, were in the judgmentroll, made up by the clerk in the case, but the order forpublication of the summons aforesaid was not placed insaid roll by said clerk, but remains on the files of said

court; and that when said court made said order forpublication, and gave said judgment against Neff, theonly evidence it had before it to prove the facts necessaryto give it jurisdiction therefor, and particularly toauthorize it to find and state that Neff's residence wasunknown to Mitchell, and could not, with reasonablediligence, be ascertained by him, and that Neff had noticeof the pendency of said action by the publication of thesummons as aforesaid, was, so far as appears by the saidroll and the records and files of the said [***6] court, thesaid complaint and affidavits of Mitchell and the editor ofthe "Advocate."

The statute of Oregon at the time of thecommencement of the suit against Neff was as follows: --

"SECT. 55. When service of the summons cannot bemade as prescribed in the last preceding section, and thedefendant, after due diligence, cannot be found within theState, and when that fact appears, by affidavit, to thesatisfaction of the court or judge thereof, or justice in anaction in a justice's court, and it also appears that a causeof action exists against the defendant, or that he is aproper party to an action relating to real property in thisState, such court or judge or justice may grant an orderthat the service be made by publication of summons ineither of the following cases: . . .

"3. When the defendant is not a resident of the State,but has property therein, and the court has jurisdiction ofthe subject of the action.

"SECT. 56. The order shall direct the publication tobe made in a newspaper published in the county wherethe action is commenced, and, if no newspaper bepublished in the county, then in a newspaper to bedesignated as most likely to give notice to the [***7]person to be served, and for such length of time as maybe deemed reasonable, not less than once a week for sixweeks. In case of publication, the court or judge shallalso direct a copy of the summons and complaint to beforthwith deposited in the post-office, directed to thedefendant, at his place of residence, unless it shall appearthat such residence is neither known to the party makingthe application, nor can, with reasonable diligence, beascertained by him. When publication is ordered,personal service of a copy of the summons and complaintout of the State shall be equivalent to publication anddeposit in the post-office. In either case, the defendantshall appear and answer by the first day of the termfollowing the expiration of the time prescribed in the

Page 295 U.S. 714, *; 24 L. Ed. 565, **;

1877 U.S. LEXIS 2227, ***3; 5 Otto 714

Page 4: (II) Pennoyer v. Neff

order for publication; and, if he does not, judgment maybe taken against him for want thereof. In case of personalservice out of the State, the summons shall specify thetime prescribed in the order for publication.

"SECT. 57. The defendant against whompublication is ordered, or his personal representatives, onapplication and sufficient cause shown, at any timebefore judgment, shall be allowed to defend the [***8]action; and the defendant against whom publication isordered, or his representatives, may in like manner, upongood cause shown, and upon such terms as may beproper, be allowed to defend after judgment, and withinone year after the entry of such judgment, on such termsas may be just; and, if the defence be successful, and thejudgment or any part thereof have been collected orotherwise enforced, such restitution may thereupon becompelled as the court shall direct. But the title toproperty sold upon execution issued on such judgment toa purchaser in good faith shall not be thereby affected."

"SECT. 60. Proof of the service of summons shallbe, in case of publication, the affidavit of the printer, orhis foreman, or his principal clerk, showing the same."

DISPOSITION: The lower court's decision wasaffirmed. The court held that the judgment from theunderlying action was invalid due to the fact that plaintiffwas a non-resident of the state in which the action wasbrought and was not personally served.

CASE SUMMARY:

PROCEDURAL POSTURE: Defendant sought reviewof a decision from the Circuit Court of the United Statesfor the District of Oregon, which held that a judgmentgranting ownership of certain property to defendant wasinvalid.

OVERVIEW: This was an action to recover possessionof a tract of land to which both plaintiff and defendantasserted title. Defendant claimed to have acquired thepremises under a sheriff's deed made upon a sale of theproperty resulting from a judgment recovered againstplaintiff in one of the circuit courts of the state. The caseturned upon the validity of that judgment. The lowercourt found that the judgment was invalid due toproblems with an affidavit. On appeal, the court ruledthat the judgment was invalid, on different reasoning.Because at the time the action was commenced and the

judgment was rendered plaintiff was a non-resident of thestate, was not personally served with process, and did notappear, the judgment could not be valid against plaintiff.Because of the lack of personal service, the sale of theproperty in controversy was not authorized. Accordingly,the decision below was affirmed.

OUTCOME: The lower court's decision was affirmed.The court held that the judgment from the underlyingaction was invalid due to the fact that plaintiff was anon-resident of the state in which the action was broughtand was not personally served.

LexisNexis(R) Headnotes

Civil Procedure > Judgments > Entry of Judgments >Enforcement & Execution > Writs of ExecutionGovernments > Courts > Authority to Adjudicate[HN1] The authority of every tribunal is necessarilyrestricted by the territorial limits of the State in which itis established. Any attempt to exercise authority beyondthose limits would be deemed in every other forum, ashas been said by this court, an illegitimate assumption ofpower, and be resisted as mere abuse.

Governments > Courts > Authority to Adjudicate[HN2] The State through its tribunals, may subjectproperty situated within its limits owned by non-residentsto the payment of the demand of its own citizens againstthem; and the exercise of this jurisdiction in no respectinfringes upon the sovereignty of the State where theowners are domiciled.

Civil Procedure > Jurisdiction > Personal Jurisdiction& In Rem Actions > Constitutional LimitsConstitutional Law > Bill of Rights > FundamentalRights > Procedural Due Process > Scope of Protection[HN3] Since the adoption of U.S. Const. amend. XIV, thevalidity of judgments against persons who have not beenpersonally summoned or had notice of the proceedingmay be directly questioned, and their enforcement in theState resisted, on the ground that proceedings in a courtof justice to determine the personal rights and obligationsof parties over whom that court has no jurisdiction do notconstitute due process of law.

Page 395 U.S. 714, *; 24 L. Ed. 565, **;

1877 U.S. LEXIS 2227, ***7; 5 Otto 714

Page 5: (II) Pennoyer v. Neff

LAWYERS' EDITION HEADNOTES:

Service of summons by publication -- personaljudgment -- property of non-resident -- substitutedservice -- process -- Oregon law -- foreign tribunals --due process of law. --

Headnote:

Head notes by Mr. Justice Field.

1. A Statute of Oregon, after providing for service ofsummons in an action upon parties or theirrepresentatives, personally or at their residence, declaresthat when service cannot be thus made, and thedefendant, after due diligence, cannot be found within theState, and "that fact appears, by affidavit, to thesatisfaction of the court or judge thereof, and it, in likemanner, appears that a cause of action exists against thedefendant, or that he is a proper party to an action relatingto real property in the State, such court or judge maygrant an order that the service be made by publication ofsummons, * * * when the defendant is not a resident ofthe State; but has property therein, and the court hasjurisdiction of the subject of the action," the order todesignate a newspaper of the county where the action iscommenced in which the publication shall be made andthat proof of such publication shall be "the affidavit ofthe printer, or his foreman, or his principal clerk:" Held,that defects in the affidavit for the order can only betaken advantage of on appeal, or by some other directproceeding, and cannot be urged to impeach the judgmentcollaterally; and that the provision as to proof of thepublication is satisfied when the affidavit is made by theeditor of the paper.

2. A personal judgment rendered in a State Court, inan action upon a money demand against a non-resident ofthe State, without personal service of process upon himwithin the State or his appearance in the action uponservice by publication is without any validity; and no titleto property passes by a sale under an execution issuedupon such a judgment.

3. The State, having within its territory property ofnon-residents, may hold and appropriate it to satisfy theclaims of its citizens against them; and its tribunals mayinquire into their obligations to the extent necessary tocontrol the disposition of the property. If non-residentshave no property in the State, there is nothing upon which

the tribunals can adjudicate.

4. Substituted service by publication, or in any otherauthorized form, is sufficient to inform parties of theobject of proceedings taken, where property is oncebrought under the control of the court, by seizure or someequivalent act. The law assumes that property is alwaysin the possession of its owner, in person or by agent, andproceeds upon the theory that its seizure will inform himthat it is taken into the custody of the court and that hemust look to any proceedings authorized by law uponsuch seizure for its condemnation and sale. But where theentire object of the action is to determine the personalrights and obligations of the defendants, that is, where thesuit is merely in personam, constructive service in thisform upon a non-resident is ineffectual for any purpose.

5. Process from the tribunals of one State cannot runinto another State, and summon parties there domiciled toleave its territory and respond to proceedings againstthem; and publication of process or notice within theState in which the tribunal sits cannot create any greaterobligation upon the non-resident to appear. Process sentto him out of the State, and process published within it,are equally unavailing in proceedings to establish hispersonal liability.

6. Except in cases affecting the personal status of theplaintiff, and cases in which that mode of service may beconsidered to have been assented to in advance, thesubstituted service of process by publication, allowed bythe law of Oregon and by similar laws in other Stateswhere actions are brought against non-residents, iseffectual only where, in connection with process againstthe person for commencing the action, property in theState is brought under the control of the court, andsubjected to its disposition by process adapted to thatpurpose, or where the judgment is sought as a means ofreaching such property, or affecting some interest therein;in other words, where the action is in the nature of aproceeding in rem.

7. Whilst the courts of the United States are notforeign tribunals in their relations to the State Courts,they are tribunals of a different sovereignty exercising adistinct and independent jurisdiction, and are bound togive to the judgments of the State Courts only the samefaith and credit which the courts of another State arebound to give to them.

8. The term "due process of law," when applied to

Page 495 U.S. 714, *; 24 L. Ed. 565, **;

1877 U.S. LEXIS 2227, ***8; 5 Otto 714

Page 6: (II) Pennoyer v. Neff

judicial proceedings, means a course of legal proceedingsaccording to those rules and principles which have beenestablished by our system of jurisprudence for theprotection and enforcement of private rights. To givesuch proceedings any validity, there must be a tribunalcompetent by its constitution to pass upon thesubject-matter of the suit; and if that involves merely adetermination of the personal liability of the defendant,he must be brought within its jurisdiction by service ofprocess within the State, or his voluntary appearance.

SYLLABUS

1. A statute of Oregon, after providing for service ofsummons upon parties or their representatives, personallyor at their residence, declares that when service cannot bethus made, and the defendant, after due diligence, cannotbe found within the State, and "that fact appears, byaffidavit, to the satisfaction of the court or judge thereof,and it, in like manner, appears that a cause of actionexists against [***9] the defendant, or that he is a properparty to an action relating to real property in the State,such court or judge may grant an order that the service bemade by publication of summons, . . . when the defendantis not a resident of the State, but has property therein, andthe court has jurisdiction of the subject of the action," --the order to designate a newspaper of the county wherethe action is commenced in which the publication shall bemade, -- and that proof of such publication shall be "theaffidavit of the printer, or his foreman, or his principalclerk." Held, that defects in the affidavit for the order canonly be taken advantage of on appeal, or by some otherdirect proceeding, and cannot be urged to impeach thejudgment collaterally; and that the provision as to proofof the publication is satisfied when the affidavit is madeby the editor of the paper.

2. A personal judgment is without any validity, if itbe rendered by a State court in an action upon amoney-demand against a non-resident of the State, whowas served by a publication of summons, but upon whomno personal service of process within the State was made,and who did not appear; and no title to property [***10]passes by a sale under an execution issued upon such ajudgment.

3. The State, having within her territory property ofa non-resident, may hold and appropriate it to satisfy theclaims of her citizens against him; and her tribunals mayinquire into his obligations to the extent necessary to

control the disposition of that property. If he has noproperty in the State, there is nothing upon which hertribunals can adjudicate.

4. Substituted service by publication, or in any otherauthorized form, is sufficient to inform a non-resident ofthe object of proceedings taken, where property is oncebrought under the control of the court by seizure or someequivalent act; but where the suit is brought to determinehis personal rights and obligations, that is, where it ismerely in personam, such service upon him is ineffectualfor any purpose.

5. Process from the tribunals of one State cannot runinto another State, and summon a party there domiciled torespond to proceedings against him; and publication ofprocess or of notice within the State in which the tribunalsits cannot create any greater obligation upon him toappear. Process sent to him out of the State, and process[***11] published within it, are equally unavailing inproceedings to establish his personal liability.

6. Except in cases affecting the personal status ofthe plaintiff, and in those wherein that mode of servicemay be considered to have been assented to in advance,the substituted service of process by publication, allowedby the law of Oregon and by similar laws in other Stateswhere actions are brought against non-residents, iseffectual only where, in connection with process againstthe person for commencing the action, property in theState is brought under the control of the court, andsubjected to its disposition by process adapted to thatpurpose, or where the judgment is sought as a means ofreaching such property, or affecting some interest therein;in other words, where the action is in the nature of aproceeding in rem.

7. Whilst the courts of the United States are notforeign tribunals in their relations to the State courts, theyare tribunals of a different sovereignty, and are bound togive to a judgment of a State court only the same faithand credit to which it is entitled in the courts of anotherState.

8. The term, "due process of law," when applied to[***12] judicial proceedings, means a course of legalproceedings according to those rules and principles whichhave been established by our jurisprudence for theprotection and enforcement of private rights. To givesuch proceedings any validity, there must be a competenttribunal to pass upon their subject-matter; and, if that

Page 595 U.S. 714, *; 24 L. Ed. 565, **;

1877 U.S. LEXIS 2227, ***8; 5 Otto 714

Page 7: (II) Pennoyer v. Neff

involves merely a determination of the personal liabilityof the defendant, he must be brought within itsjurisdiction by service of process within the State, or byhis voluntary appearance.

COUNSEL: Mr. W. F. Trimble for the plaintiff in error.

Mr. James K. Kelly, contra.

OPINION BY: FIELD

OPINION

[*719] [**567] MR. JUSTICE FIELD deliveredthe opinion of the court.

This is an action to recover the possession of a tractof land, of the alleged value of $15,000, situated in theState of Oregon. The plaintiff asserts title to the premisesby a patent of the United States issued to him in 1866,under the act of Congress of Sept. 27, 1850, usuallyknown as the Donation Law of Oregon. The defendantclaims to have acquired the premises under a sheriff'sdeed, made upon a sale of the property on executionissued upon a judgment recovered against the plaintiff[***13] in one of the circuit courts of the State. Thecase turns upon the validity of this judgment.

It appears from the record that the judgment wasrendered in February, 1866, in favor of J. H. Mitchell, forless than $300, including costs, in an action brought byhim upon a demand for services as an attorney; that, atthe time the action was commenced and the judgmentrendered, the defendant therein, the plaintiff here, was anon-resident of the State; [*720] that he was notpersonally served with process, and did not appeartherein; and that the judgment was entered upon hisdefault in not answering the complaint, upon aconstructive service of summons by publication.

The Code of Oregon provides for such service whenan action is brought against a non-resident and absentdefendant, who has property [**568] within the State. Italso provides, where the action is for the recovery ofmoney or damages, for the attachment of the property ofthe non-resident. And it also declares that no naturalperson is subject to the jurisdiction of a court of the State,"unless he appear in the court, or be found within theState, or be a resident thereof, or have property therein;and, [***14] in the last case, only to the extent of suchproperty at the time the jurisdiction attached." Construing

this latter provision to mean, that, in an action for moneyor damages where a defendant does not appear in thecourt, and is not found within the State, and is not aresident thereof, but has property therein, the jurisdictionof the court extends only over such property, thedeclaration expresses a principle of general, if notuniversal, law. [HN1] The authority of every tribunal isnecessarily restricted by the territorial limits of the Statein which it is established. Any attempt to exerciseauthority beyond those limits would be deemed in everyother forum, as has been said by this court, an illegitimateassumption of power, and be resisted as mere abuse.D'Arcy v. Ketchum et al., 11 How. 165. In the caseagainst the plaintiff, the property here in controversy soldunder the judgment rendered was not attached, nor in anyway brought under the jurisdiction of the court. Its firstconnection with the case was caused by a levy of theexecution. It was not, therefore, disposed of pursuant toany adjudication, but only in enforcement of a personaljudgment, having no relation [***15] to the property,rendered against a non-resident without service ofprocess upon him in the action, or his appearance therein.The court below did not consider that an attachment ofthe property was essential to its jurisdiction or to thevalidity of the sale, but held that the judgment wasinvalid from defects in the affidavit upon which the orderof publication was obtained, and in the affidavit by whichthe publication as proved.

[*721] There is some difference of opinion amongthe members of this court as to the rulings upon thesealleged defects. The majority are of opinion thatinasmuch as the statute requires, for an order ofpublication, that certain facts shall appear by affidavit tothe satisfaction of the court or judge, defects in suchaffidavit can only be taken advantage of on appeal, or bysome other direct proceeding, and cannot be urged toimpeach the judgment collaterally. The majority of thecourt are also of opinion that the provision of the statuterequiring proof of the publication in a newspaper to bemade by the "affidavit of the printer, or his foreman, orhis principal clerk." is satisfied when the affidavit ismade by the editor of the paper. [***16] The term"printer," in their judgment, is there used not to indicatethe person who sets up the type, -- he does not usuallyhave a foreman or clerks, -- it is rather used assynonymous with publisher. The Supreme Court of NewYork so held in one case; observing that, for the purposeof making the required proof, publishers were "within thespirit of the statute." Bunce v. Reed, 16 Barb. (N.Y.) 350.

Page 695 U.S. 714, *; 24 L. Ed. 565, **;

1877 U.S. LEXIS 2227, ***12; 5 Otto 714

Page 8: (II) Pennoyer v. Neff

And, following this ruling, the Supreme Court ofCalifornia held that an affidavit made by a "publisher andproprietor" was sufficient. Sharp v. Daugney, 33 Cal.512. The term "editor," as used when the statute of NewYork was passed, from which the Oregon law isborrowed, usually included not only the person whowrote or selected the articles for publication, but theperson who published the paper and put it intocirculation. Webster, in an early edition of hisDictionary, gives as one of the definitions of an editor, aperson "who superintends the publication of anewspaper." It is principally since that time that thebusiness of an editor has been separated from that of apublisher and printer, and has become an independentprofession.

If, therefore, we were confined [***17] to therulings of the court below upon the defects in theaffidavits mentioned, we should be unable to uphold itsdecision. But it was also contended in that court, and isinsisted upon here, that the judgment in the State courtagainst the plaintiff was void for want of personal serviceof process on him, or of his appearance in the action inwhich it was rendered, and that the premises incontroversy could not be subjected to the payment of thedemand [*722] of a resident creditor except by aproceeding in rem; that is, by a direct proceeding againstthe property for that purpose. If these positions aresound, the ruling of the Circuit Court as to the invalidityof that judgment must be sustained, notwithstanding ourdissent from the reasons upon which it was made. Andthat they are sound would seem to follow form twowellestablished principles of public law respecting thejurisdiction of an independent State over persons andproperty. The several States of the Union are not, it istrue, in every respect independent, many of the rights andpowers which originally belonged to them being nowvested in the government created by the Constitution.But, except as restrained [***18] and limited by thatinstrument, they possess and exercise the authority ofindependent States, and the principles of public law towhich we have referred are applicable to them. One ofthese principles is, that every State possesses exclusivejurisdiction and sovereignty over persons and propertywithin its territory. As a consequence, every State has thepower to determine for itself the civil status andcapacities of its inhabitants; to prescribe the subjectsupon which they may contract, the forms and solemnitieswith which their contracts shall be executed, the rightsand obligations arising from them, and the mode in which

their validity shall be determined and their obligationsenforced; and also to regulate the manner and conditionsupon which property situated within such territory, bothpersonal and real, may be acquired, enjoyed, andtransferred. The other principle of public law referred tofollows from the one mentioned; that is, that no State canexercise direct jurisdiction and authority over persons orproperty without its territory. Story, Confl. Laws, c. 2;Wheat. Int. Law, pt. 2, c. 2. The several States are ofequal dignity and authority, and the independence[***19] of one implies the exclusion of power from allothers. And so it is laid down by jurists, as an elementaryprinciple, that the laws of one State have no operationoutside of its territory, except so far as is allowed bycomity; and that no tribunal established by it can extendits process beyond that territory so as to subject eitherpersons or property to its decisions. "Any exertion ofauthority of this sort beyond this limit, [**569] " saysStory, "is a mere nullity, and incapable of binding [*723]such persons or property in any other tribunals." Story,Confl. Laws, sect. 539.

But as contracts made in one State may beenforceable only in another State, and property may beheld by non-residents, the exercise of the jurisdictionwhich every State is admitted to possess over persons andproperty within its own territory will often affect personsand property without it. To any influence exerted in thisway by a State affecting persons resident or propertysituated elsewhere, no objection can be justly taken;whilst any direct exertion of authority upon them, in anattempt to give ex-territorial operation to its laws, or toenforce an ex-territorial jurisdiction by its [***20]tribunals, would be deemed an encroachment upon theindependence of the State in which the persons aredomiciled or the property is situated, and be resisted asusurpation.

Thus the State, through its tribunals, may compelpersons domiciled within its limitsto execute, inpursuance of their contracts respecting propertyelsewhere situated, instruments in such form and withsuch solemnities as to transfer the title, so far as suchformalities can be complied with; and the exercise of thisjurisdiction in no manner interferes with the supremecontrol over the property by the State within which it issituated. Penn v. Lord Baltimore, 1 Ves. 444; Massie v.Watts, 6 Cranch, 148; Watkins v. Holman, 16 Pet. 25;Corbett v. Nutt, 10 Wall. 464.

Page 795 U.S. 714, *721; 24 L. Ed. 565, **568;

1877 U.S. LEXIS 2227, ***16; 5 Otto 714

Page 9: (II) Pennoyer v. Neff

So [HN2] the State through its tribunals, may subjectproperty situated within its limits owned by non-residentsto the payment of the demand of its own citizens againstthem; and the exercise of this jurisdiction in no respectinfringes upon the sovereignty of the State where theowners are domiciled. Every State owes protection to itsown citizens; and, when non-residents deal with them, itis a legitimate and just exercise [***21] of authority tohold and appropriate any property owned by suchnon-residents to satisfy the claims of its citizens. It is invirtue of the State's jurisdiction over the property of thenon-resident situated within its limits that its tribunalscan inquire into that non-resident's obligations to its owncitizens, and the inquiry can then be carried only to theextent necessary to control the disposition of theproperty. If the non-resident [*724] have no property inthe State, there is nothing upon which the tribunals canadjudicate.

These views are not new. They have been frequentlyexpressed, with more or less distinctness, in opinions ofeminent judges, and have been carried into adjudicationsin numerous cases. Thus, in Picquet v. Swan, 5 Mas. 35,Mr. Justice Story said: --

"Where a party is within a territory, he may justly besubjected to its process, and bound personally by thejudgment pronounced on such process against him.Where he is not within such territory, and is notpersonally subject to its laws, if, on account of hissupposed or actual property being within the territory,process by the local laws may, by attachment, go tocompel his appearance, [***22] and for his default toappear judgment may be pronounced against him, such ajudgment must, upon general principles, be deemed onlyto bind him to the extent of such property, and cannothave the effect of a conclusive judgmnt in personam, forthe plain reason, that, except so far as the property isconcerned, it is a judgment coram non judice."

And in Boswell's Lessee v. Otis, 9 How. 336, wherethe title of the plaintiff in ejectment was acquired on asheriff's sale, under a money decree rendered uponpublication of notice against non-residents, in a suitbrought to enforce a contract relating to land, Mr. JusticeMcLean said: --

"Jurisdiction is acquired in one of two modes: first,as against the person of the defendant by the service ofprocess; or, secondly, by a procedure against the propertyof the defendant within the jurisdiction of the court. In

the latter case, the defendant is not personally bound bythe judgment beyond the property in question. And it isimmaterial whether the proceeding against the propertybe by an attachment or bill in chancerty. It must besubstantially a proceeding in rem."

These citations are not made as authoritative [***23]expositions of the law; for the language was perhaps notessential to the decision of the cases in which it was used,but as expresssions of the opinion of eminent jurists. Butin Cooper v. Reynolds, reported in the 10th of Wallace, itwas essential to the disposition of the case to declare theeffect of a personal action against an absent party,without the jurisdiction of the court, not served [*725]with process or voluntarily submitting to the tribunal,when it was sought to subject his property to the paymentof a demand of a resident complainant; and in the opinionthere delivered we have a clear statement of the law as tothe efficacy of such actions, and the jurisdiction of thecourt over them. In that case, the action was for damagesfor alleged false imprisonment of the plaintiff; and, uponhis affidavit that the defendants had fled from the State,or had absconded or concealed themselves so that theordinary proces of law could not reach them, a writ ofattachment was sued out against their property.Publication was ordered by the court, giving notice tothem to appear and plead, answer or demur, or that theaction would be taken as confessed and proceeded[***24] in ex parte as to them. Publication was had; butthey made default, and judgment was entered againstthem, and the attached property was sold under it. Thepurchaser having been put into possession of theproperty, the original owner brought ejectment for itsrecovery. In considering the character of the proceeding,the court, speaking through Mr. Justice Miller, said: --

"Its essential purpose or nature is to establish, by thejudgment of the court, a demand or claim against thedefendant, and subject his property lying within theterritorial jurisdiction of the court to the payment of thatdemand. But the plaintiff is met at the commencement ofhis proceedings by the fact that the defendant is notwithin the territorial jurisdiction, and cannot be servedwith any process by which he can be brought personallywithin the power of the court. For this difficulty thestatute has provided a remedy. It says that, upon affidavitbeing made of that fact, a writ of attachment may beissued and levied on any of the defendant's property, anda publication may be made warning him to appear; andthat thereafter the court may proceed in the case, whether

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he appears or not. If the defendant [***25] appears, thecause becomes mainly a suit in personam, with the added[**570] incident, that the property attached remainsliable, under the control of the court, to answer to anydemand which may be established against the defendantby the final judgment of the court. But if there is noappearance of the defendant, and no service of process onhim, the case becomes in its essential nature a proceedingin rem, the only effect of which is to subject the propertyattached to the payment of the demand which the courtmay find to be due to the plaintiff. That such is [*726]the nature of this proceeding in this latter class of cases isclearly evinced by two well-established propositions:first, the judgment of the court, though in form a personaljudgment against the defendant, has no effect beyond theproperty attached in that suit. No general execution canbe issued for any balance unpaid after the attachedproperty is exhausted. No suit can be maintained on sucha judgment in the same court, or in any other; nor can itbe used as evidence in any other proceeding not affectingthe attached property; nor could the costs in thatproceeding be collected of defendant [***26] out of anyother property than that attached in the suit. Second, thecourt, in such a suit, cannot on which to levy the writ ofattachment. A return that none can be found is the end ofthe case, and deprives the court of further jurisdiction,though the publication may have been duly made andproven in court."

The fact that the defendants in that case had fledfrom the State, or had concealed themselves, so as not tobe reached by the ordinary process of the court, and werenot non-residents, was not made a point in the decision.The opinion treated them as being without the territorialjurisdiction of the court; and the grounds and extent of itsauthority over persons and property thus situated wereconsidered, when they were not brought within itsjurisdiction by personal service or voluntary appearance.

The writer of the present opinion considered thatsome of the objections to the preliminary proceedings inthe attachment suit were well taken, and thereforedissented from the judgment of the court; but to thedoctrine declared in the above citation he agreed, and hemay add, that it received the approval of all the judges. Itis the only doctrine consistent with proper [***27]protection to citizens of other States. If, without personalservice, judgments in personam, obtained ex parteagainst non-residents and absent parties, upon merepublication of process, which, in the great majority of

cases, would never be seen by the parties interested,could be upheld and enforced, they would be the constantinstruments of fraud and oppression. Judgments for allsorts of claims upon contracts and for torts, real orpretended, would be thus obtained, under which propertywould be seized, when the evidence of the transactionsupon [*727] which they were founded, if they ever hadany existence, had perished.

Substituted service by publication, or in any otherauthorized form, may be sufficient to inform parties ofthe object of proceedings taken where property is oncebrought under the control of the court by seizure or someequivalent act. The law assumes that property is alwaysin the possession of its owner, in person or by agent; andit proceeds upon the theory that its seizure will informhim, not only that it is taken into the custody of the court,but that he must look to any proceedings authorized bylaw upon such seizure for its condemnation [***28] andsale. Such service may also be sufficient in cases wherethe object of the action is to reach and dispose of propertyin the State, or of some interest therein, by enforcing acontract or a lien respecting the same, or to partition itamong different owners, or, when the public is a party, tocondemn and appropriate it for a public purpose. In otherwords, such service may answer in all actions which aresubstantially proceedings in rem. But where the entireobject of the action is to determine the personal rights andobligations of the defendants, that is, where the suit ismerely in personam, constructive service in this formupon a non-resident is ineffectual for any purpose.Process from the tribunals of one State cannot run intoanother State, and summon parties there domiciled toleave its territory and respond to proceedings againstthem. Publication of process or notice within the Statewhere the tribunal sits cannot create any greaterobligation upon the non-resident to appear. Process sentto him out of the State, and process published within it,are equally unavailing in proceedings to establish hispersonal liability.

The want of authority of the tribunals [***29] of aState to adjudicate upon the obligations of non-residents,where they have no property within its limits, is notdenied by the court below: but the position is assumed,that, where they have property within the State, it isimmaterial whether the property is in the first instancebrought under the control of the court by attachment orsome other equivalent act, and afterwards applied by itsjudgment to the satisfaction of demands against its

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owner; or such demands be first established in a personalaction, and [*728] the property of the non-resident beafterwards seized and sold on execution. But the answerto this position has already been given in the statement,that the jurisdiction of the court to inquire into anddetermine his obligations at all is only incidental to itsjurisdiction over the property. Its jurisdiction in thatrespect cannot be made to depend upon facts to beascertained after it has tried the cause and rendered thejudgment. If the judgment be previously void, it will notbecome valid by the subsequent discovery of property ofthe defendant, or by his subsequent acquisition of it. Thejudgment, if void when rendered, will always remainvoid: it [***30] cannot occupy the doubtful position ofbeing valid if property be found, and void if there benone. Even if the position assumed were confined tocases where the non-resident defendant possessedproperty in the State at the commencement of the action,it would still make the validity of the proceedings andjudgment depend upon the question whether, before thelevy of the execution, the defendant had or had notdisposed of the property. If before the levy the propertyshould be sold, then, according to this position, thejudgment would not be binding. This doctrine wouldintroduce a new element of uncertainty in judicialproceedings. The contrary is the law: the validity ofevery judgment depends upon the jurisdiction of the courtbefore it is rendered, [**571] not upon what may occursubsequently. In Webster v. Reid, reported in 11th ofHoward, the plaintiff claimed title to land sold underjudgments recovered in suits brought in a territorial courtof Iowa, upon publication of notice under a law of theterritory, without service of process; and the court said: --

"These suits were not a proceeding in rem against theland, but were in personam against the [***31] ownersof it. Whether they all resided within the territory or notdoes not appear, nor is it a matter or any importance. Noperson is required to answer in a suit on whom processhas not been served, or whose property has not beenattached. In this case, there was no personal notice, noran attachment or other proccding against the land, untilafter the judgments. The judgments, therefore, arenullities, and did not authorize the executions on whichthe land was sold."

[*729] The force and effect of judgments renderedagainst non-residents without personal service of processupon them, or their voluntary appearance, have been thesubject of frequent consideration in the courts of the

United States and of the several States, as attempts havebeen made to enforce such judgments in States other thanthose in which they were rendered, under the provision ofthe Constitution requiring that "full faith and credit shallbe given in each State to the public acts, records, andjudicial proceedings of every other State;" and the act ofCongress providing for the mode of authenticating suchacts, records, and proceedings, and declaring that, whenthus authenticated, "they shall have [***32] such faithand credit given to them in every court within the UnitedStates as they have by law or usage in the courts of theState from which they are or shall be taken." In the earliercases, it was supposed that the act gave to all judgmentsthe same effect in other States which they had by law inthe State where rendered. But this view was afterwardsqualified so as to make the act applicable only when thecourt rendering the judgment had jurisdiction of theparties and of the subject-matter, and not to preclude aninquiry into the jurisdiction of the court in which thejudgment was rendered, or the right of the State itself toexercise authority over the person or the subject-matter.M'Elmoyle v. Cohen, 13 Pet. 312. In the case of D'Arcy v.Ketchum, reported in the 11th of Howard, this view isstated with great clearness. That was an action in theCircuit Court of the United States for Louisiana, broughtupon a judgment rendered in New York under a Statestatute, against two joint debtors, only one of whom hadbeen served with process, the other being a non-residentof the State. The Circuit Court held the judgmentconclusive and binding upon the non-resident [***33]not served with process; but this court reversed itsdecision, observing, that it was a familiar rule thatcountries foreign to our own disregarded a judgmentmerely against the person, where thedefendant had notbeen served with process nor had a day in court; thatnational comity was never thus extended; that theproceeding was deemed an illegitimate assumption ofpower, and resisted as mere abuse; that no faith and creditor force and effect had been given to such judgments byany State of the Union, so far [*730] as known; and thatthe State courts had uniformly, and in many instances,held them to be void. "The international law," said thecourt, "as it existed among the States in 1790, was that ajudgment rendered in one State, assuming to bind theperson of a citizen of another, was void within the foreignState, when the defendant had not been served withprocess or voluntarily made defence; because neither thelegislative jurisdiction nor that of courts of justice hadbinging force." And the court held that the act ofCongress did not intend to declare a new rule, or to

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embrace judicial records of this description. As wasstated in a subsequent case, the doctrine of [***34] thiscourt is, that the act "was not designed to displace thatprinciple of natural justice which requires a person tohave notice of a suit before he can be conclusively boundby its result, nor those rules of public law which protectpersons and property within one State from the exerciseof jurisdiction over them by another." The LafayetteInsurance Co. v. French et at., 18 How. 404.

This whole subject has been very fully and learnedlyconsidered in the recent case of Thompson v. Whitman,18 Wall. 457, where all the authorities are carefullyreviewed and distinguished, and the conclusion abovestated is not only reaffirmed, but the doctrine is asserted,that the record of a judgment rendered in another Statemay be contradicted as to the facts necessary to give thecourt jurisdiction against its recital of their existence. Inall the cases brought in the State and Federal courts,where attempts have been made under the act ofCongress to give effect in one State to personaljudgments rendered in another State againstnon-residents, without service upon them, or uponsubstituted service by publication, or in some other form,it has been held, without an exception, [***35] so far aswe are aware, that such judgments were without anybinding force, except as to property, or interests inproperty, within the State, to reach and affect which wasthe object of the action in which the judgment wasrendered, and which property was brought under controlof the court in connection with the process against theperson. The proceeding in such cases, though in the formof a personal action, has been uniformly treated, whereservice was not obtained, and the party did notvoluntarily [*731] appear, as effectual and bindingmerely as a proceeding in rem, and as having nooperation beyond the disposition of the property, or someinterest therein. And the reason assigned for thisconclusion has been that which we have already stated,that the tribunals of one State have no jurisdiction overpersons beyond its limits, and can inquire only into theirobligations to its citizens when exercising its concededjurisdiction over their property within its limits. In Bissellv. Briggs, decided by the Supreme Court ofMassachusetts as early as 1813, the law is statedsubstantially in conformity with these views. In thatcase, the court considered at length [***36] the effect ofthe constitutional provision, and the act of Congressmentioned, and after stating that, in order to entitle thejudgment rendered in any court of the United States to the

full faith and credit mentioned in the Constitution, thecourt must have had jurisdiction not only of the cause,but of the parties, it proceeded to illustrate its position byobserving, that, where a debtor living in one State hasgoods, effects, and credits in another, his creditor livingin the [**572] other State may have the propertyattached pursuant to its laws, and, on recoveringjudgment, have the property applied to its satisfaction;and that the party in whose hands the property was wouldbe protected by the judgment in the State of the debtoragainst a suit for it, because the court rendering thejudgment had jurisdiction to that extent; but that if theproperty attached were insufficient to satisfy thejudgment, and the creditor should sue on that judgment inthe State of the debtor, he would fail, because thedefendant was not amenable to the court rendering thejudgment. It other words, it was held that over theproperty within the State the court had jurisdiction by theattachment, [***37] but had none over his person; andthat any determination of his liability, except so far aswas necessary for the disposition of the property, wasinvalid.

In Kilbourn v. Woodworth, 5 Johns, (N.Y.) 37, anaction of debt was brought in New York upon a personaljudgment recovered in Massachusetts. The defendant inthat judgment was not served with process; and the suitwas commenced by the attachment of a bedsteadbelonging to the defendant, accompanied with asummons to appear, served on his wife after she had lefther place in Massachusetts. The court held that [*732]the attachment bound only the property attached as aproceeding in rem, and that it could not bind thedefendant, observing, that to bind a defendant personally,when he was never personally summoned or had noticeof the proceeding, would be contrary to the firstprinciples of justice, repeating the language in thatrespect of Chief Justice DeGrey, used in the case ofFisher v. Lane, 3 Wils. 297, in 1772. See also Borden v.Fitch, 15 Johns. (N.Y.) 121, and the cases there cited, andHarris v. Hardeman et al., 14 How. 334. To the samepurport decisions are found in all the [***38] Statecourts. In several of the cases, the decision has beenaccompanied with the observation that a personaljudgment thus recovered has no binding force without theState in which it is rendered, implying that in such Stateit may be valid and binding. But if the court has nojurisdiction over the person of the defendant by reason ofhis nonresidence, and, consequently, no authority to passupon his personal rights and obligations; if the whole

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proceeding, without service upon him or his appearance,is coran non judice and void; if to hold a defendantbound by such a judgment is contrary to the firstprinciples of justice, -- it is difficult to see how thejudgment can legitimately have any force within theState. The language used can be justified only on theground that there was no mode of directly reviewing suchjudgment or impeaching its validity within the Statewhere rendered; and that, therefore, it could be called inquestion only when its enforcement was elsewhereattempted. In later cases, this language is repeated withless frequency than formerly, it beginning to beconsidered, as it always ought to have been, that ajudgment which can be treated in any State [***39] ofthis Union as contrary to the first principles of justice,and as an absolute nullity, because rendered without anyjurisdiction of the tribunal over the party, is not entitledto any respect in the State where rendered. Smith v.McCutchen, 38 Mo. 415; Darrance v. Preston, 18 Iowa,396; Hakes v. Shupe, 27 id. 465; Mitchell's Administratorv. Gray, 18 Ind. 123.

Be that as it may, the courts of the United States arenot required to give effect to judgments of this characterwhen any right is claimed under them. Whilst they arenot foreign tribunals in their relations to the State courts,are tribunals [*733] of a different sovereignty,exercising a distinct and independent jurisdiction, and arebound to give to the judgments of the State courts onlythe same faith and credit which the courts of anotherState are bound to give to them.

[HN3] Since the adoption of the FourteenthAmendment to the Federal Constitution, the validity ofsuch judgments may be directly questioned, and theirenforcement in the State resisted, on the ground thatproceedings in a court of justice to deter mine thepersonal rights and obligations of parties over whom that[***40] court has no jurisdiction do not constitute dueprocess of law. Whatever difficulty may be experiencedin giving to those terms a definition which will embraceevery permissible exertion of power affecting privaterights, and exclude such as is forbidden, there can be nodoubt of their meaning when applied to judicialproceedings. They them mean a course of legalproceedings according to those rules and principles whichhave been established in our systems of jurisprudence forthe protection and enforcement of private rights. To givesuch proceedings any validity, there must be a tribunalcompetent by its constitution -- that is, by the law of its

creation -- to pass upon the subject-matter of the suit;and, if that involves merely a determination of thepersonal liability of the defendant, he must be broughtwithin its jurisdiction by service of process within theState, or his voluntary appearance.

Except in cases affecting the personal status of theplaintiff, and cases in which that mode of service may beconsidered to have been assented to in advance, ashereinafter mentioned, the substituted service of processby publication, allowed by the law of Oregon and bysimilar [***41] laws in other States, where actions arebrought against non-residents, is effectual only where, inconnection with process against the person forcommencing the action, property in the State is broughtunder the control of the court, and subjected to itsdisposition by process adapted to that purpose, or wherethe judgment is sought as a means of reaching suchproperty or affecting some interest therein; in otherwords, where the action is in the nature of a proceeding inrem. As stated by Cooley in his Treatise onConstitutional Limitations, 405, for any other purposethan to subject the property of a non-resident to validclaims against [*734] him in the State, "due process oflaw would require appearance or personal service beforethe defendant could be personally bound by any judgmentrendered."

It is true that, in a strict sense, a proceeding in rem isone taken directly against property, and has for its objectthe disposition of the property, without reference to thetitle of individual claimants; but, in a larger and moregeneral sense, the terms are applied to actions betweenparties, where the direct object is to reach and dispose ofproperty owned by them, [***42] or of some interesttherein. Such are cases commenced by attachmentagainst the property of debtors, or instituted to partitionreal estate, foreclose a [**573] mortgage, or enforce alien. So far as they affect property in the State, they aresubstantially proceedings in rem in the broader sensewhich we have mentioned.

It is hardly necessary to observe, that in all we havesaid we have had reference to proceedings in courts offirst instance, and to their jurisdiction, and not toproceedings in an appellate tribunal to review the actionof such courts. The latter may be taken upon such notice,personal or constructive, as the State creating the tribunalmay provide. They are considered as rather acontinuation of the original litigation than the

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commencement of a new action. Nations et al. v.Johnson et al., 24 How. 195.

It follows from the views expressed that the personaljudgment recovered in the State court of Oregon againstthe plaintiff herein, then a non-resident of the State, waswithout any validity, and did not authorize a sale of theproperty in controversy.

To prevent any misapplication of the viewsexpressed in this opinion, it is proper to [***43] observethat we do not mean to assert, by any thing we have said,that a State may not authorize proceedings to determinethe Status of one of its citizens towards a non-resident,which would be binding within the State, though madewithout service of process or personal notice to thenon-resident. The jurisdiction which every Statepossesses to determine the civil status and capacities ofall its inhabitants involve authority to prescribe theconditions on which proceedings affecting them may becommenced and carried on within its territory. The State,for example, has absolute [*735] right to prescribe theconditions upon which the marriage relation between itsown citizens shall be created, and the causes for which itmay be dissolved. One of the parties guilty of acts forwhich, by the law of the State, a dissolution may begranted, may have removed to a State where nodissolution is permitted. The complaining party would,therefore, fail if a divorce were sought in the State of thedefendant; and if application could not be made to thetribunals of the complainant's domicile in such case, andproceedings be there instituted without personal serviceof process [***44] or personal notice to the offendingparty, the injured citizen would be without redress. Bish.Marr. and Div., sect. 156.

Neither do we mean to assert that a State may notrequire a non-resident entering into a partnership orassociation within its limits, or making contractsenforceable there, to appoint an agent or representative inthe State to receive service of process and notice in legalproceedings instituted with respect to such partnership,association, or contracts, or to designate a place wheresuch service may be made and notice given, and provide,upon their failure, to make such appointment or todesignate such place that service may be made upon apublic officer designated for that purpose, or in someother prescribed way, and that judgments rendered uponsuch service may not be binding upon the non-residentsboth within and without the State. As was said by the

Court of Exchequer in Vallee v. Dumergue, 4 Exch. 290,"It is not contrary to natural justice that a man who hasagreed to receive a particular mode of notification oflegal proceedings should be bound by a judgment inwhich that particular mode of notification has beenfollowed, even though he may [***45] not have actualnotice of them." See also The Lafayette Insurance Co. v.French et al., How. 404, and Gillespie V CommercialMutual Marine Insurance Co., 12 Gray (Mass.), 201. Nordo we doubt that a State, on creating corporations orother institutions for pecuniary or charitable purposes,may provide a mode in which their conduct may beinvestigated, their obligations enforced, or their chartersrevoked, which shall require other than personal serviceupon their officers or members. Parties becomingmembers of such corporations or institutions would holdtheir [*736] interest subject to the conditions prescribedby law. Copin v. Adamson, Law Rep. 9 Ex. 345.

In the present case, there is no feature of this kind,and, consequently, no consideration of what would be theeffect of such legislation in enforcing the contract of anon-resident can arise. The question here respects onlythe validity of a money judgment rendered in one State,in an action upon a simple contract against the resident ofanother, without service of process upon him, or hisappearance therein.

Judgment affirmed.

DISSENT BY: HUNT

DISSENT

MR. JUSTICE HUNT dissenting.

I am compelled [***46] to dissent from the opinionand judgment of the court, and, deeming the questioninvolved to be important, I take leave to record my viewsupon it.

The judgment of the court below was placed uponthe ground that the provisions of the statute were notcomplied with. This is of comparatively littleimportance, as it affects the present case only. Thejudgment of this court is based upon the theory that thelegislature had no power to pass the law in question; thatthe principle of the statute is vicious, and everyproceeding under it void. It, therefore, affects all likecases, past and future, and in every State.

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The precise case is this: A statute of Oregonauthorizes suits to be commenced by the service of asummons. In the case of a non-resident of the State, itauthorizes the service of the summons to be made bypublication for not less than six weeks, in a newspaperpublished in the county where the action is commenced.A copy of the summons must also be sent by mail,directed to the defendant at his place of residence, unlessit be shown that the residence is not known and cannot beascertained. It authorizes a judgment and execution to beobtained in such proceeding. [***47] Judgment in a suitcommenced by one Mitchell in the Circuit Court ofMultnomah County, where the summons was thus served,was obtained against Neff, the present plaintiff; and theland in question, situate in Multnomah County, wasbought by the defendant Pennoyer, at a sale upon thejudgment in such suit. This court now holds, that, byreason of the absence of a personal service of [*737] thesummons on the defendant, the Circuit Court of Oregonhad no jurisdiction, its judgment could not authorize thesale of land in said county, and, as a necessary result, apurchaser of land under it obtained no title; that, as to theformer owner, it is a case of depriving a person of hisproperty without due process of law.

In my opinion, this decision is at variance [**574]with the long-established practice under the statutes ofthe States of this Union, is unsound in principle, and, Ifear, may be disastrous in its effects. It tends to produceconfusion in titles which have been obtained undersimilar statutes in existence for nearly a century; it inviteslitigation and strife, and over throws a well-settled rule ofproperty.

The result of the authorities on the subject, and[***48] the sound conclusions to be drawn from theprinciples which should govern the decision, as I shallendeavor to show, are these: --

1. A sovereign State must necessarily have suchcontrol over the real and personal property actually beingwithin its limits, as that it may subject the same to thepayment of debts justly due to its citizens.

2. This result is not altered by the circumstance thatthe owner of the property is non-resident, and so absentfrom the State that legal process cannot be served uponhim personally.

3. Personal notice of a proceeding by which title toproperty is passed is not indispensable; it is competent to

the State to authorize substituted service by publication orotherwise, as the commencement of a suit againstnon-residents, the judgment in which will authorize thesale of property in such State.

4. It belongs to the legislative power of the State todetermine what shall be the modes and means proper tobe adopted to give notice to an absent defendant of thecommencement of a suit; and if they are such as arereasonably likely to communicate to him information ofthe proceeding against him, and are in good faithdesigned to give him such information, [***49] and anopportunity to defend is provided for him in the event ofhis appearance in the suit, it is not competent to thejudiciary to declare that such proceeding is void as notbeing by due process of law.

5. Whether the property of such non-resident shallbe seized [*738] upon attachment as the commencementof a suit which shall be carried into judgment andexecution, upon which it shall then be sold, or whether itshall be sold upon an execution and judgment withoutsuch preliminary seizure, is a matter not of constitutionalpower, but of municipal regulation only.

To say that a sovereign State has the power to ordainthat the property of non-residents within its territory maybe subjected to the the payment of debts due to itscitizens, if the property is levied upon at thecommencement of a suit, but that it has not such power ifthe property is levied upon at the end of the suit, is arefinement and a depreciation of a great general principlethat, in my judgment, cannot be sustained

A reference to the statutes of the different States, andto the statutes of the United States, and to the decidedcases, and a consideration of the principles on which theystand, will [***50] more clearly exhibit my view of thequestion.

The statutes are of two classes: first, those whichauthorize the commencement of actions by publication,accompanied by an attachment which is levied uponproperty, more or less, of an absent debtor; second, thosegiving the like mode of commencing a suit without anattachment.

The statute of Oregon relating to publication ofsummons, supra, p. 718, under which the question arises,is nearly a transcript of a series of provisions contained inthe New York statute, adopted thirty years since. The

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latter authorizes the commencement of a suit against anon-resident by the publication of an order for hisappearance, for a time [**575] not less than six weeks,in such newspapers as shall be most likely to give noticeto him, and the deposit of a copy of the summons andcomplaint in the post-office, directed to him at hisresidence, if it can be ascertained; and provides for theallowance to defend the action before judgment, andwithin seven years after its rendition, upon good causeshown, and that, if the defence be successful, restitutionshall be ordered. It then declares: "But the title toproperty sold under such judgment [***51] to apurchaser in good faith shall not be thereby affected."Code, sects. 34, 35; 5 Edm. Rev. Stat. of N.Y., pp. 37-39.

Provisions similar in their effect, in authorizing thecommencement of suits by attachment against absentdebtors, in [*739] which all of the property of the absentdebtor, real and personal, not merely that seized upon theattachment, is placed under the control of trustees, whosell it for the benefit of all the creditors, and make justdistribution thereof, conveying absolute title to theproperty sold, have been upon the statutebook of NewYork for more than sixty years. 2 id., p. 2 and following;1 Rev. Laws, 1813, p. 157.

The statute of New York, before the Code,respecting proceedings in chancery where absent debtorsare parties, had long been in use in that State, and wasadopted in all cases of chancery jurisdiction. Whenever adefendant resided out of the State, his appearance mightbe compelled by publication in the manner pointed out.A decree might pass against him, and performance becompelled by sequestration of his real or personalproperty, or by causing possession of specific property tobe delivered, where that relief is sought. The [***52]relief was not confined to cases of mortgage foreclosure,or where there was a specific claim upon the property,but included cases requiring the payment of money aswell. 2 Edm. Rev. Stat. N.Y., pp. 193-195; 186, m.

I doubt not that many valuable titles are now held byvirtue of the provisions of these statutes.

The statute of California authorizes the service of asummons on a non-resident defendant by publication,permitting him to come in and defend upon the meritswithin one year after the entry of judgment. Code, sects.10,412, 10,473. In its general character it is like thestatutes of Oregon and New York, already referred to.

The Code of Iowa, sect. 2618, that of Nevada, sect.1093, and that of Wisconsin, are to the same generaleffect. The Revised Statutes of Ohio, sects. 70, 75, 2Swan & Critchfield, provide for a similar publication, andthat the defendant may come in to defend within fiveyears after the entry of the judgment, but that the title toproperty held by any purchaser in good faith under thejudgment shall not be affected thereby,

The attachment laws of New Jersey, Nixon Dig. (4thed.), p. 55, are like those of New York already quoted, bywhich title [***53] may be transferred to all the propertyof a non-resident debtor. And the provisions of thePennsylvania statute regulating [*740] proceedings inequity, Brightly's Purden's Dig., p. 5988, sects. 51, 52,give the same authority in substance, and the same resultis produced as under the New York statute.

Without going into a wearisome detail of the statutesof the various States, it is safe to say that nearly everyState in the Union provides a process by which the landsand other property of a non-resident debtor may besubjected to the payment of his debts, through a judgmentor decree against the owner, obtained upon a substitutedservice of the Summons or writ commencing the action.

The principle of substituted service is also a rule ofproperty under the statutes of the United States.

The act of Congress "to amend the law of the Districtof Columbia in relation to judicial proceedings therein,"approved Feb. 23, 1867, 14 Stat. 403, contains the samegeneral provisions. It enacts (sect. 7) that publicationmay be substituted for personal service, when thedefendant cannot be found, in suits for partition, divorce,by attachment, for the foreclosure of mortgages anddeeds [***54] of trust, and for the enforcement ofmechanics' liens and all other liens against real orpersonal property, and in all actions at law or in equityhaving for their immediate object the enforcement orestablishment of any lawful right, claim, or demand to oragainst any real or personal property within thejurisdiction of the court.

A following section points out the mode ofproceeding, and closes in these words: --

"The decree, besides subjecting the thing upon whichthe lien has attached to the satisfaction of the plaintiff'sdemand against the defendant, shall adjudge that theplaintiff recover his demand against the defendant, and

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that he have execution thereof as at law." Sect. 10.

A formal judgment against the debtor is thusauthorized, by means of which any other property of thedefendant within the jurisdiction of the court, in additionto that which is the subject of the lien, may be sold, andthe title transferred to the purchaser.

All these statutes are now adjudged to beunconstitutional and void. The titles obtained under themare not of the value [*741] of the paper on which theyare recorded, except where a preliminary attachment wasissued.

Some of the [***55] statutes and several of theauthorities I cite go further than the present case requires.In this case, property lying in the State where the suit wasbrought, owned by the non-resident debtor, was soldupon the judgment against him; and it is on the title tothat property that the controversy turns.

The question whether, in a suit commenced like thepresent one, a judgment can be obtained, which, if suedupon in another State, will be conclusive against thedebtor, is not before us; nor does the question arise as tothe faith and credit to be given in one State to a judgmentrecovered in another.The learning on that subject is notapplicable. The point is simply whether land lying in thesame State may be subjected to process at the end of asuit thus commenced.

It is here necessary only to maintain the principlelaid down by Judge Cooley in his work on ConstitutionalLimitations, p. 404, and cited by Mr. Justice Field inGalpin v. Page, 3 Sawyer, 93, in these words: --

"The fact that process was not personally served is aconclusive objection to the judgment as a personal claim,unless the defendant caused his appearance to be enteredin the attachment proceedings. [***56] Where a partyhas property in a State, and resides elsewhere, hisproperty is justly subject to all valid claims that may existagainst him there; but beyond this, due process of lawwould require appearance or personal [**576] servicebefore the defendant could be personally bound by anyjudgment rendered."

The learned author does not make it a condition thatthere should be a preliminary seizure of the property byattachment; he lays down the rule that all a person'sproperty in a State may be subjected to all valid claims

there existing against him.

The objection now made, that suits commenced bysubstituted service, as by publication, and judgmentsobtained without actual notice to the debtor, are inviolation of that constitutional provision that no manshall be deprived of his property "without due process oflaw," has often been presented.

In Matter of the Empire City Bank, 18 N.Y. 199,which [*742] was a statutory proceeding to establishand to enforce the responsibility of the stockholders of abanking corporation, and the proceedings in whichresulted in a personal judgment against the stockholdersfor the amount found due, the eminent and learned Judge[***57] Denio, speaking as the organ of the Court ofAppeals, says: --

"The notice of hearing is to be personal, or byservice at the residence of the parties who live in thecounty, or by advertisement as to others. It may,therefore, happen that some of the persons who are madeliable will not have received actual notice, and thequestion is, whether personal service of process or actualnotice to the party is essential to constitute due process oflaw. We have not been referred to any adjudicationholding that no man's right of property can be affected byjudicial proceedings unless he have personal notice.Itmay be admitted that a statute which should authorizeany debt or damages to be adjudged against a personupon a purely ex parte proceeding, without a pretence ofnotice or any provision for defending, would be aviolation of the Constitution, and be void; but where thelegislature has prescribed a kind of notice by which it isreasonably probable that the party proceeded against willbe apprised of what is going on against him, and anopportunity is afforded him to defend, I am of the opinionthat the courts have not the power to pronounce theproceeding illegal. The legislature [***58] hasuniformly acted upon that understanding of theConstitution."

Numerous provisions of the statutes of the State arecommented upon, after which he proceeds: --

"Various prudential regulations are made withrespect to these remedies; but it may possibly happen,notwithstanding all these precautions, that a citizen whoowes nothing, and has done none of the acts mentioned inthe statute, may be deprived of his estate, without anyactual knowledge of the process by which it has been

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taken from him. If we hold, as we must in order tosustain this legislation, that the Constitution does notpositively require personal notice in order to constitute alegal proceeding due process of law, it then belongs tothe legislature to determine whether the case calls for thiskind of exceptional legislation, and what manner ofconstructive notice shall be sufficient to reasonablyapprise the party proceeded against of the legal stepswhich are taken against him."

[*743] In Happy v. Mosher, 48 id. 313, the courtsay: --

"An approved definition of due process of law is 'lawin its regular administration through courts of justice.' 2Kent, Com. 13. It need not be a legal proceeding [***59]according to the course of the common law, neither mustthere be personal notice to the party whose property is inquestion. It is sufficient if a kind of notice is provided bywhich it is reasonably probable that the party proceededagainst will be apprised of what is going on against him,and an apportunity afforded him to defend."

The same language is used in Westervelt v. Gregg,12 id. 202, and in Campbell v. Evans, 45 id. 356.Campbell v. Evans and The Empire City Bank are casesnot of proceedings against property to enforce a lien orclaim; but in each of them a personal judgment indamages was rendered against the party complaining.

It is undoubtedly true, that, in many cases where thequestion respecting due process of law has arisen, thecase in hand was that of a proceeding in rem. It is true,also, as is asserted, that the process of a State cannot besupposed to run beyond its own territory. It is equallytrue, however, that, in every instance where the questionhas been presented, the validity of substituted service,which is used to subject property within the Statebelonging to a non-resident to a judgment obtained bymeans thereof, [***60] has been sustained. I havefound no case in which it is adjudged that a statute mustrequire a preliminary seizure of such property asnecessary to the validity of the proceeding against it, orthat there must have been a previous specific lien upon it;that is, I have found no case where such has been thejudgment of the court upon facts making necessary thedecision of the point. On the contrary, in the case of theattachment laws of New York and of New Jersey, whichdistribute all of the non-resident's property, not merelythat levied on by the attachment, and in several of thereported cases already referred to, where the judgment

was sustained, neither of these preliminary facts existed.

The case of Galpin v. Page, reported in 18 Wall.350, and again in 3 Sawyer, 93, is cited in hostility to theviews I have expressed. There may be generalexpressions which will justify [*744] this suggestion,but the judgment is in harmony with those principles. Inthe case as reported in this court, it was held that the titleof the purchaser under a decree against a non-residentinfant was invalid, for two reasons: 1st, That there was nojurisdiction of the proceeding under [***61] the statuteof California, on account of the entire absence of anaffidavit of non-residence, and of diligent inquiry for theresidence of the debtor; 2d, the absence of any order forpublication in Eaton's case, -- both of which areconditions precedent to the jurisdiction of the court totake any action on the subject. The title was held void,also, for the reason that the decree under which it wasobtained had been reversed in the State court, and the titlewas not taken at the sale, nor held then by a purchaser ingood faith, the purchase being made by one of theattorneys in the suit, and the title being transferred to hislaw partner after the reversal of the decree. The courtheld that there was a failure of jurisdiction in the courtunder which the plaintiff [**577] claimed title, and thathe could not recover. The learned justice who deliveredthe opinion in the Circuit Court and in this courtexpressly affirms the authority of a State over persons notonly, but property as well, within its limits, and this bymeans of a substituted service. The judgment so obtained,he insists, can properly be used as a means of reachingproperty within the State, which is thus brought [***62]under the control of the court and subjected to itsjudgment. This is the precise point in controversy in thepresent action.

The case of Cooper v. Reynolds, 10 Wall. 308, iscited for the same purpose. There the judgment of thecourt below, refusing to give effect to a judgmentobtained upon an order of publication against anon-resident, was reversed in this court. The suit wascommenced, or immediately accompanied (it is not clearwhich), by an attachment which was levied upon the realestate sold, and for the recovery of which this action wasbrought. This court sustained the title founded upon thesuit commenced against the non-resident by attachment.In the opinion delivered in that case there may beremarks, by way of argument or illustration, tending toshow that a judgment obtained in a suit not commencedby the levy of an attachment will not give title to land

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purchased under it. They are, [*745] however,extra-judicial, the decision itself sustaining the judgmentobtained under the State statute by publication.

Webster v. Reid, 11 How. 437, is also cited. Therethe action involved the title to certain lands in the State ofIowa, being lands [***63] formerly belonging to thehalf-breeds of the Sac and Fox tribes; and title wasclaimed against the Indian right under the statutes of June2, 1838, and January, 1839. By these statutes,commissioners were appointed who were authorized tohear claims for accounts against the Indians, andcommence actions for the same, giving a notice thereof ofeight weeks in the Iowa "Territorial Gazette," and to enterup judgments which should be a lien on the lands. It wasprovided that it should not be necessary to name thedefendants in the suits, but the words "owners of thehalf-breed lands lying in Lee County" should be asufficient designation of the defendants in such suits; andit provided that the trials should be by the court, and notby a jury. It will be observed that the lands were not onlywithin the limits of the territory of Iowa, but that all theIndians who were made defendants under the namementioned were also residents of Iowa, and, for aughtthat appears to the contrary, of the very county of Lee inwhich the proceeding was taken. Non-residence was nota fact in the case. Moreover, they were Indians, and,presumptively, not citizens of any State; and thejudgments under [***64] which the lands were sold wererendered by the commissioners for their own servicesunder the act.

The court found abundant reasons, six in number, forrefusing to sustain the title thus obtained. The act wasapparently an attempt dishonestly to obtain the Indiantitle, and not intended to give a substitution for a personalservice which would be likely, or was reasonablydesigned, to reach the persons to be affected.

The case of Voorhees v. Jackson, 10 Pet. 449,affirmed the title levied under the attachment laws ofOhio, and laid down the principle of assuming that allhad been rightly done by a court having generaljurisdiction of the subject-matter.

In Cooper v. Smith, 25 Iowa, 269, it is said, thatwhere no process is served on the defendant, nor propertyattached, nor garnishee charged, nor appearance entered,a judgment based [*746] on a publication of thependency of the suit will be void, and may be impeached,collaterally or otherwise, and forms no bar to a recovery

in opposition to it, nor any foundation for a title claimedunder it. The language is very general, and goes muchbeyond that requirement of the case, which was an appealfrom a personal [***65] judgment obtained bypublication against the defendant, and where, as the courtsay, the petition was not properly verified. All that thecourt decided was that this judgment should be reversed.This is quite a different question from the one before us.Titles obtained by purchase at a sale upon an erroneousjudgment are generally good, although the judgment itselfbe afterwards reversed. McGoon v. Scales, 9 Wall. 311.

In Darrance v. Preston, 18 Iowa, 396, the distinctionis pointed out between the validity of a judgment as to theamount realized from the sale of property within thejurisdiction of the court and its validity beyond thatamount. Picquet v. Swan, 5 Mas. 35; Bissell v. Briggs, 9Mass. 462; Ewer v. Coffin, 1 Cush. (Mass.) 23, are cited;but neither of them in its facts touches the question beforeus.

In Drake on Attachment, the rule is laid down in verygeneral language; but none of the cases cited by him willcontrol the present case. They are the following: --

Eaton v. Bridger, 33 N.H. 228, was decided uponthe peculiar terms of the New Hampshire statute, whichforbids the entry of a judgment, unless the debtor [***66]was served with process, or actually appeared andanswered in the suit. The court say the judgment was"not only unauthorized by law, but rendered in violationof its express provisions."

Johnson v. Dodge was a proceeding in the sameaction to obtain a reversal on appeal of the generaljudgment, and did not arise upon a contest for propertysold under the judgment. Carleton v. WashingtonInsurance Co., 35 id. 162, and Bruce v. Cloutman, 45 id.37, are to the same effect and upon the same statute.

Smith v. McCutchen, 38 Mo. 415, was a motion inthe former suit to set aside the execution by a garnishee,and it was held that the statute was intended to extend tothat class of cases. Abbott v. Shepard, 44 id. 273, is tothe same effect, and is based upon Smith v. McCutchen,supra.

[*747] So in Eastman v. Wadleigh, 65 Me. 251, thequestion arose in debt on the judgment, not upon aholding of land purchased under the judgment. It wasdecided upon the express language of the statute of

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Maine, strongly implying [**578] the power of thelegislature to make it otherwise, had they so chosen.

It is said that the case [***67] where a preliminaryseizure has been made, and jurisdiction therebyconferred, differs from that where the property is seizedat the end of the action, in this: in the first case, theproperty is supposed to be so near to its owner, that, ifseizure is made of it, he will be aware of the fact, andhave his opportunity to defend, and jurisdiction of theperson is thus obtained. This, however, is matter ofdiscretion and of judgment only. Such seizure is not initself notice to the defendant, and it is not certain that hewill by that means receive notice. Adopted as a means ofcommunicating it, and although a very good means, it isnot the only one, nor necessarily better than a publicationof the pendency of the suit, made with an honest intentionto reach the debtor. Who shall assume to say to thelegislature, that if it authorizes a particular mode ofgiving notice to a debtor, its action may be sustained, but,if it adopts any or all others, its action is unconstitutionaland void? The rule is universal, that modes, means,questions of expediency or necessity, are exclusivelywithin the judgment of the legislature, and that thejudiciary cannot review them. This has been so [***68]held in relation to a bank of the United States, to thelegal-tender act, and to cases arising under otherprovisions of the Constitution.

In Jarvis v. Barrett, 14 Wis. 591, such is the holding.The court say: --

"The essential fact on which the publication is made

to depend is property of the defendant in the State, andnot whether it has been attached. . . . There is no magicabout the writ [of attachment] which should make it theexclusive remedy. The same legislative power whichdevised it can devise some other, and declare that it shallhave the same force and effect. The particular means tobe used are always within the control of the legislature,so that the end be not beyond the scope of legislativepower."

If the legislature shall think that publication anddeposit in the post-office are likely to give the notice,there seems to be [*748] nothing in the nature of thingsto prevent their adoption in lieu of the attachment. Thepoint of power cannot be thus controlled.

That a State can subject land within its limitsbelonging to non-resident owners to debts due to its owncitizens as it can legislate upon all other local matters;that it can prescribe [***69] the mode and process bywhich it is to be reached, -- seems to me very plain.

I am not willing to declare that a sovereign Statecannot subject the land within its limits to the payment ofdebts due to its citizens, or that the power to do sodepends upon the fact whether its statute shall authorizethe property to be levied upon at the commencement ofthe suit or at its termination. This is a matter of detail,and I am of opinion, that if reasonable notice be given,with an opportunity to defend when appearance is made,the question of power will be fully satisfied.

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