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MARCH 9, 1878.

No. 2

Current Topics.

An important decision has been rendered by the Supreme Court of the United States in the case of Pennoyer vs. Neff in error to the Circuit Court of the U. S. District Court of Oregon. The following is a synopsis of the decision :

1.-A statute of Oregon, after providing for service of sum mons in an action upon parties or their representatives personally or at their residence, declares that when service cannot be thus made and the defendant, after due diligence, cannot be found within the state, and “ that fact appears, by affidavit, to the satisfaction of the court or judge thereof, and it, in like manner, appears that a cause of action exists against the defendant, or that he is a proper party to an action relating to real property in the state, such Court or judge may grant an order that the service be made by publication of summons

when the defendant is not a resident of the state but has property therein and the Court has jurisdiction of the subject of the action"—the order to designate a newspaper of the county where the action is commenced in which the publication shall be made—and that proof of such publication shall be "the affidavit of the printer, or his foreman, or his principal clerk :" Held, that defects in the affidavit for the order can only be taken advantage of on appeal or by some other direct proceeding, and cannot be urged to impeach the judgment collaterally; and that the provision as to proof of the publication is satisfied when the affidavit is made by the editor of the paper.

2.-A personal judgment rendered in a state court in an action upon a money demand against a non-resident of the state, without personal service of process upon him within the state, or his appearance in the action, upon service by publication, is without any validity ; and no title to property passes by a sale under an execution issued upon such a judgment

3.—The state having within its territory property of nonresidents may hold and appropriate it to satisfy the claims of its citizens against them, and its tribunals may enquire into their obligations to the extent necessary to control the disposition of the property. If non-residents have no property in the state, there is nothing upon which the tribunals can adjudicate.

4.-Substituted service by publication, or in any other authorized form, is sufficient to inform parties of the object of proceedings taken, where property is once brought under the control of the Court by seizure or some equivalent act. The law assumes that property is always in the possession of its owner, in person or by agent, and proceeds upon the theory that its seizure will inform him, that it is taken into the custody of the Court. and that he must look to any proceedings authorized by law upon such seizure for its condemnation and sale. But where the entire object of the action is to determine the personal rights and obligations of the defendants, that is, where the suit is merely in personam, constructive service in this form upon a non-resident is ineffectual for any purpose.

5.—Process from the tribunals of one state cannot run into another state and summon parties there domiciled to leave its territory and respond to proceedings against them ; and publication of process or notice within the State in which the tribunal sits cannot create any greater obligation upon the non-resident to appear. Process sent to him out of the State and process published within it are equally unavailing in proceedings to establish his personal liability.

6.-Except in cases affecting the personal status of the plaintiff, and cases in which that mode of service may be considered to have been assented to in advance, the substituted service of process by publication, allowed by the law of Oregon and by similar laws in other states, where actions are

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brought against non-residents, is effectual only where, in connection with process against the person for commencing the action, property in the State is brought under the control of the Court and subjected to its disposition by process adopted for that purpose, or where the judgment is sought as a means of reaching such property or affecting some interest therein ; in other words, where the action is in the nature of a proceeding in rem.

7.—Whilst the Courts of the United States are not foreign tribunals in their relations to the State Courts, they are tribunals of a different sovereignty, exercising a distinct and independent jurisdiction, and are bound to give to the judgments of the State Courts only the same faith and credit which the Courts of another State are bound to give them.

8.—The terms “due process of law,” when applied to judicial proceedings, means a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights. To give such proceedings any validity, there must be a tribunal competent by its constitution to pass upon the subject-matter of the suit, and if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the State, or his voluntary appearance.

The decisions of California have not gone quite so far in their construction of the statute relating to the manner of proof of publication. In Sharp vs. Dangney 33 Cal., the Court say that an affidavit by the "publisher and proprietor” is sufficient, and in Quivey vs. Porter 37 Cal., they say “printer” and "proprietor” are synonymous in the sense of the statute ; but the Court have never yet held that the affidavit made by an "editor" is sufficient. It will be observed that the Oregon statute is the same as the California statute, and the construction given the Oregon statute is applicable to our own.

But the other feature of the decision will prove to be all important as it seems to be a death stroke to the system of rendering personal judgments against non-residents upon default after publication of summons.

WE published in full (S. F. LAW JOURNAL No. 1, Vol. 1) the opin,ion of the Supreme Court in the case of McCreery vs. Sawyer. It was an action of ejectment. The issues raised and determined by the case were : 1. As to the adversion in evidence of the deed from the city to county of San Francisco to the plaintiff. 2. That it was not shown by plaintiff debors the deed and its recital that it was a beneficiary under the act of Congress. 3. As to the possession of the defendant. 4. As to the plea of the statutes of limitation. The court held that inasmuch as the defendant did not appear to have any claim to the title he was in no position to litigate the question ; that defendant did not state that his possession was bona fide and his offer did not show that he was in possession on the 8th day of March 1866 ; and that his plea of the Statute of limitations was bad.

We now give the opinions in two other cases involving the same points with additional ones which we believe, together with the unreported and unwritten opinion in the case of Kraft vs. Driscoll included about all the defenses that can be made against the deeds made by the city and county under the act of March 1866 and the subsequent acts of the Legislature. In Kraft vs. Driscoll it was contended by the plaintiff who brought suit to quiet title that he being in possession on the 8th day of march 1866, (but the finding was to the contrary) was a lien eficiary under the Act and entitled to a deed, and that the deed from the city and county to defendants was nullity and should be excluded. That the city and county through the Board of Snpervisors or by the Mayor could not make a deed for the want of power. That the deed in this case was made before any authority had been conferred by the Legislature; that the Act of Congress granted the lands to the city corporation in trust to be disposed of and conveyed to parties in actual possession and upon such terms as the Legislature of the State might prescribe; that the defendant did not proceed under ordinance 890 but under 733 which was repeated. The date of the deed was Nov. 8, 1869.

8 The action was a direct attack against the validity of the deed, but the Court sustained the ruling of the Court below


in admitting it and giving judgment for the defendants. We give the other opinions below.

[No. 5437]
[Filed August 23d.]

McCREERY VS. DUANE. 1. The objections to the introduction in evidence of the deed from the city to McCreery were properly overruled. (McCreery vs. Sawyer, No. 5136, at the present term.)

2. The only other point relied on by the appellant arises upon the following portion of the bill of exceptions : “And the defendant, John Duane, then offered to prove that neither the plaintiff nor his grantor was in the bona fide possession of the said land on the 8th day of March, 1866, nor any one for them, which evidence was offered for the purpose of attacking said deed from the city ; but said defendant did not propose or offer to prove in connection with said offer that he, said Duane, had complied with the terms and conditions of said ordinances or acts of the Legislature; but the evidence so offered was excluded by the Court."

Upon the views just announced in McCreery vs. Sawyer (supra) this ruling was correct.

Judgment and order affirmed. Remittitur forthwith.

[No. 5187.]
[Filed August 23d.]

McCREERY VS. DUANE. 1. The objection to the introduction in evidence of the conveyances running from the city and county of San Francisco to McCreery and others and to Doll, respectively, and the ground of the motion for a nonsuit, are the same appearing in McCreery vs. Sawyer (No. 5136), just decided, aud our views upon these points announced in that case need not be repeated in this case.

2. The defendant offered to prove that they had been in the actual, exclusive and adverse possession of the demanded

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