44 Minn. 97 | Minn. | 1890
The questions raised by this appeal involve the construction and validity of the provisions of Gen. St. 1878, c. 81, tit. 2, § 28, relating to the service of the summons in actions for the foreclosure of real-estate mortgages, which, by section 8, chapter 90, of the same statutes, are made also applicable to actions to enforce mechanics’ liens. This action "was one to enforce a mechanic’s lien; the complaint alleging that the defendant Collins claimed a lien or interest in the property on which the lien was sought to be enforced, but that it was subsequent and inferior to plaintiffs’ lien, and that no personal claim was made against him. It nowhere appears whether Collin? was or was not a resident of the state. It must therefore be presumed that he was a resident, and could have been found within the jurisdiction of the court. The only service of the summons upon him was by publication, and no affidavit for publication was ever filed with the clerk of the court, as provided by Gen. St. 1878, c. 66, § 64. Judgment was entered against him on default, which he moved to have set aside on the ground that the court had never acquired jurisdiction of his person, because there had been no vajicLservice of the summons. From an order denying this motion, he appeals.
The legislation in this state regarding substituted service by publication of the summons in civil actions has been somewhat incongruous and complicated, the history of which in detail might be interesting, but not profitable for present purposes. Suffice it to say that, from the earliest days of the territory down at least to 1866, such substituted service in actions strictly judicial in their nature, and proceeding according to the course of the common law, was only 'allowed whereMhe defendant could not be found within the state j personal service being, in accordance with the uniform rule and practice from time immemorial, required in all cases where the defendant could be found, and service made upon him, within the jurisdiction of the court. And prior to 1869 an order of court granted upon an affidavit showing a state of facts authorizing service by publication was necessary; but by Laws 1869, c. 73, (Gen. St. 1878, c. 66, § 64,)
The provisions of Gen. St. 1878, c. 81, tit. 2, with which we have now to do are as follows:
“Sec. 27. Actions for the foreclosure of mortgages shall be governed by the same rules and provisions of statute as civil actions, except as herein otherwise expressly prescribed.
“Sec. 28. Service by publication of the summons, in the manner provided in section five of title one of this chapter for publication of the notice of sale therein specified, may be made upon all parties*100 to the action against whom no personal judgment is sought; and in such case judgment may be taken, without giving security as to those parties, at the expiration of twenty days after the completion of the period of publication; but such parties, or any of them, shall be permitted to appear and defend, upon good cause shown, at any time before final decree.”
The questions presented are two: First. Was section 28 intended to provide that, in actions to foreclose mortgages, the summons might be served by publication on resident defendants who could be found in the state ? And, as a subsidiary question, whether the provisions of Gen. St. 1878, c. 66, § 64, providing for the filing of an affidavit with the clerk of the court, are applicable to such cases. Second, if the statute thus provides for service by publication on resident defendants, does such service constitute “due process of law?” We infer from the memorandum of the district judge that the subsidiary branch of the first question was the main if not the only point urged before him; and the second question is so faintly raised by the defendant in this court that we would hardly deem it 'incumbent on us to consider it, if the interests of no one but himself would be affected by an erroneous assumption of the validity of such a statute.
We think it clear that the expression “personal judgment” is here used in the sense of a money judgment for the mortgage debt; and, while the legislation on the subject, as we have narrated it, has been rather incongruous in some respects, and wliile we have been unable to discover where the commissioners who prepared the Revision of 1866 found any precedent for so radical a departure from the uniform course of judicial procedure from time immemorial, and while we are unable to conceive what considerations induced them to adopt it, yet its plain and unequivocal language compels us to the conclusion that this statute was intended to provide that service of the summons by publication might be made on all defendants in foreclosure suits whom it was not sought to hold personally liable for the mortgage debt, although residents of the state, and personal service might be made on them within its jurisdiction. And, if this be so, it would seem to follow that the provisions of section 64, c. 66, as to filing an affidavit, could not apply to such cases; for, by
The only remaining question, therefore, is whether it is competent for the legislature to authorize such service in such actions upon residents of the state personally present, and capable of being found and personally served, within its jurisdiction. Is such service “due process of law?” In determining this question, it becomes important, first, to consider the character of an action to foreclose a mortgage. It is not an action in rem, but an action in personam. It is true it has for its object certain specific real property against which it is sought to enforce the lien of the mortgage, and in that sense it partakes somewhat of the nature of a proceeding in rem, but not dif-ferentlv, or in any other sense, than do actions in ejectment, replevin, for specific performance of a contract to convey, to determine adverse claim to real estate, and the like. The rights and equities of all parties interested in the mortgaged premises are to be adjusted in the action, which proceeds, not against the property, but against the persons; and the judgment binds only those who are parties to the suit, and those in privity with them. Whalley v. Eldridge, 24 Minn. 358. Next, it is not only an action in personam, but is also strictly judicial in its character, proceeding according to the due course of common law, like any other ordinary action cognizable in courts of equity or common law. These facts are important for the reason that what would be due process of law in one kind of proceeding might not be such in another, for reasons that will be alluded to hereafter.
No court has ever attempted to give a complete or exhaustive definition of the term “due process of law,” for it is incapable of any such definition. All that can be done is to lay down certain general principles, and apply these to the facts of each case as they arise. Mr. Webster, in his argument in the Dartmouth College Case, gave an'exposition of the words “law of the land,” and “due process of law,” which has often been quoted by the courts with approval, viz.: “The general law, which hears before it condemns; which proceeds
As a substitute for the means formerly resorted to in England in such cases, most of the American states have adopted service of the process or summons by publication. But we have found no statute,'-' except the one now under consideration, which has «assumed to authorize such a mode of service, and have found no case where its validity has been sustained by the courts, except as to defendants who could not be found within the jurisdiction, either because of non- ^
It is, in our judgment, beyond the power of the legislature to disregard so fundamental and long-established a principle of our jurisprudence. Service by publication, under such circumstances, is not “due process of law,” and therefore any statute assuming to authorize it is unconstitutional. It would be of little use to cite authorities upon a subject which has been so much and so often discussed in its many phases, as each case must be determined upon its own facts, and hence the decided cases would ordinarily be in point only by way of analogy. See, however, Brown v. Board of Levee Com’rs, 50 Miss. 468.
Order reversed.