Opinion of the Court.

that the appearance was unauthorized, and this even where the proof directly contradicts the record."

We do not understand any different view to obtain in Texas. In Fowler v. Morrill, 8 Texas, 153, it was held that the acceptance of service of process by an attorney is only prima facie evidence of his authority. In Parker v. Spencer, 61 Texas, 155, the court decided that a judgment did not affect a party who had not been served, but who on the record appeared by an attorney not authorized to so appear, and it was said: "And as he had not been made a party to the suit by any of the modes known to the law, he could not be bound by the judgment. But he had the option either to have it vacated by direct proceeding or else to treat it as void in any collateral proceeding where rights might be asserted against him by reason of the same."

In Bender v. Damon, 72 Texas, 92, which is much in point, Chief Justice Stayton states the case as follows:

"The petition alleges substantially the facts necessary to be alleged in an action of trespass to try title, and the petition was so endorsed. Had it done this and no more, there could have been no ground for controversy in the court below as to its jurisdiction to hear and determine the cause, nor as to the sufficiency of the petition on general demurrer. The appellant, however, sought to remove, cloud from his title, which a judgment in his favor in an action of trespass to try title would have accomplished as against the defendants, and to obtain this relief he undertook to show that appellees were claiming under a sheriff's sale and deed under an execution issued from the district court for Navarro County, on a judgment rendered by that court against him and in favor of S. J. T. Johnson, all of which he claimed were invalid.

"Some of the facts which he alleged to show the invalidity of that judgment, execution and sale, were such as might entitle him, by a proper proceeding, to have had them vacated, but not such as to render them void.

"The petition, however, went further, and alleged facts which, if true, would render the judgment void. It alleged that the plaintiff was a non-resident of this State; that he

Opinion of the Court.

never was cited to appear, and did not appear in person or by attorney in the proceeding in which the judgment in favor of Johnson and against himself was rendered; and that appellees claimed through an execution and sale made under a judg ment so rendered. If these averments be true the judgment was void, and no one could acquire rights under it.”

We think the Circuit Court was clearly right in admitting evidence to contradict the recital that Newell was a citizen and resident of Texas, and to show that the attorney had no authority to represent him.

Nor can this judgment be held conclusive on the theory that the suit of McGrael v. Newell was in the nature of a proceeding in rem. The property was not taken into custody by attachment, or otherwise, and the suit depended entirely on the statutes of Texas providing the procedure for the trial of the title to real estate, which contained at that time no particular provision for bringing in non-residents of the State. There was a statute providing generally that in suits against non-residents service could be had by publication, and that statute provided that if the plaintiff, or his agent, or attorney, when the suit was instituted, or during its progress, made affidavit before the clerk of the court that defendant was not a resident of the State of Texas, or that he was absent from the State, or that he was a transient person, or that his residence was unknown, then a citation should issue which should be published in a newspaper. Acts Texas, 1848, 106, c. 95. This statute was applicable to all suits, and so far as actions against non-residents were personal, judgment on citation by publication would not be conclusive. And the law also required that where any judgment was rendered on service by publication, the court should make out and incorporate with the records of the case a statement of the facts proven therein on which the judgment was founded. Acts Texas, 1846, 395. It is true that "it was within the power of the legislature of Texas to · provide for determining and quieting the title to real estate within the limits of the State and within the jurisdiction of the court, after actual notice to all known claimants, and notice by publication to all other persons." Hamilton v.

Opinion of the Court.

Brown, 161 U. S. 256, 274; Arndt v. Griggs, 134 U. S. 316. But it would seem that there was no such statute at the time of the commencement of the McGrael suit, and that suit could only be regarded as a personal action and coming within the rule laid down in Pennoyer v. Neff, 95 U. S. 714.

Moreover, the record in McGrael v. Newell shows that the suit was not brought as against a non-resident of the State, it being alleged in plaintiff's petition that defendant resided in Brazoria County, Texas. So that even if it were held that the statutes of the State, taken together, authorized suits of this character to be brought against non-residents as proceedings in rem, this cannot be asserted as to this suit; and it affirmatively appeared that no citation by publication could have been had. The citation prayed for was to be addressed to the proper officer of Brazoria County, to be served on defendant as a resident of that county; no citation by publication was asked for, and no record of the facts on which the case was tried was kept as required by statute, and the whole case was tried as a case against a resident of Brazoria County appearing by attorney. The statute at that time provided that "any party to a suit, his agent or attorney, may waive the necessity of the issuance or the service of any writ or process required to be served on him in the suit, and accept such service thereof; provided, that such waiver or acceptance shall be made in writing, signed by such party, his agent or attorney, and filed among the papers of the suit, as a record." Acts Texas, 1846, 367. The record here showed no such acceptance or waiver of service.

Treated as a personal action, brought as against a resident, when the facts appeared that defendant was not a resident of the State of Texas and was not served in that State, and had not appeared by attorney, then the judgment ceased to be binding. The result is the same if the suit were regarded as brought under a statute making provision for the bringing of suits to settle the title to lands in Texas, since that proceeding would have been purely statutory, and not according to the course of the common law, and the record did not show that it was instituted in the manner required by the statute, or ap

Statement of the Case.

pearance had or waived as required, or that the jurisdiction of the court in fact so attached as to authorize the court to render the judgment. Galpin v. Page, 18 Wall. 350.

It follows that the question propounded must be

Answered in the affirmative.

POPE v. LOUISVILLE, NEW ALBANY & CHICAGO RAILWAY COMPANY.

APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH

CIRCUIT.

No. 808. Submitted January 80, 1899. - Decided April 8, 1899.

When the jurisdiction of a Circuit Court of the United States depends on diverse citizenship, its decree is made final by the act of March 3, 1891, c. 517, 26 Stat. 826.

When an action or suit is commenced by a receiver, appointed by a Circuit Court, to accomplish the ends sought and directed by the suit in which the appointment was made, such action or suit is regarded as ancillary, so far as the jurisdiction of the Circuit Court, as a court of the United States, is concerned; and where the jurisdiction of the main suit is predicated on diversity of citizenship, and the decree therein in the Circuit Court of Appeals therefore becomes final, the judgment and decrees in the ancillary litigation are also final.

The suits in which this receiver was appointed were in the nature of creditors' bills, and the only ground of Federal jurisdiction set up in them was diversity of citizenship; and as, if the decrees therein had been passed upon by the Circuit Court of Appeals, its decision would have been final, the same finality attaches to the decree of the Circuit Court of Appeals in this suit.

BALL and Pettit filed their bill in the Circuit Court of the United States for the Northern District of Illinois alleging that Ball was a citizen of Indiana and that Pettit was a citizen of Wisconsin, and that defendants were citizens of Indiana and Illinois, which suit was discontinued as to Ball, leaving Pettit, a citizen of Wisconsin, the sole complainant. Pope was appointed, in substitution for one Fish, receiver of the

Statement of the Case.

Chicago and South Atlantic Railroad Company of Illinois, the order containing, among other things, the following:

"And it is further ordered that the defendant, the said Chicago and South Atlantic Railroad Company, or whoever may have possession thereof, do assign, transfer and deliver over to such receiver under the direction of Henry W. Bishop, a master in chancery of this court, all the property, real and personal, wheresoever found in this district, and all contracts for the purchase of land, and all other equitable interests, things in action, and other effects which belonged to, or were held in trust for, said defendant railroad company, or in which it had any beneficial interest, including the stock books of said railroad company, in the same condition they were at the time of exhibiting the said bill of complaint in this cause, except as far as necessarily changed in the proper management of said road, or in which it now has any such interest, and that said defendant, Chicago and South Atlantic Railroad Company, deliver over, in like manner all books, vouchers, bills, notes, contracts and other evidences relating thereto, and also the stock books of said railroad company.

"And it is further ordered that the said receiver have full power and authority to inquire after, receive and take possession of all such property, debts, equitable interests, things in action, and other effects, and for that purpose to examine said defendant, its officers and such other persons as he may deem necessary on oath before said master from time to time."

Afterwards a further order was entered, nunc pro tanc, as follows:

"And now comes the receiver, Charles E. Pope, of said Chicago and South Atlantic Railroad Company, and on his application it is ordered and directed that said receiver have full power and authority to bring and prosecute any and all necessary suits for the collection of any claims, choses in action and enforcement of any and every kind and nature, and to defend all suits and actions touching the rights or interests of the property or effects of any kind in his possession or under his control as receiver. This order to be entered now as of the date of his appointment and qualification as receiver."