Goodale v. Coffee

24 Or. 346 | Or. | 1893

Mr. Justice Moore

delivered the opinion of the court:

The appellants contend: — First, that the order for the publication of the summons is insufficient, and, second, the summons did not contain the names of the parties to the suit.

The theory once prevailed that judgments in personam against a non-resident, based upon constructive service of process upon him, and without his appearance, would support a sale of the debtor’s property situate in the state where rendered, but m Pennoyer v. Neff, 95 U. S. 727, it was held that when the suit is merely in personam, constructive service by the publication of a summons upon a non-resident is ineffectual for any purpose, and that unless the court, at the inception of the proceedings, got jurisdiction of the defendant’s property by attachment, or some other equivalent act, so as to make the proceeding quasi in rem, no judgment rendered against a non-resident upon such service would have any force or effect. When the court gets jurisdiction of the defendant’s property, it may order the service of process by publication, upon the theory that such property is always in the possession of the owner, in person or by agent, and its seizure must necessarily inform him of the nature oí the proceedings, and thus give the court jurisdiction to deal with it. The subject of the action may be the recovery of money, and since the debtor’s property within a state should be liable to the citizens thereof for the payment of his debts, it follows that the subject of the action carries with it the property which has by attachment or other lien become an incident thereto. The process may be constructively served whenever the court has jurisdiction of the defendant’s property, either in a direct proceeding to divest him of his title, or where such property has by any lien thereon become the incident of any judicial proceeding. Judgments rendered upon such service are quasi in rem, and only attach to property of which the court had jurisdiction at the time the service of process was ordered. It is well settled that statutes which provide for the service of process by publication are in derogation of the common law, and must be strictly construed: Odell v. Campbell, 9 Or. 298. The affidavit is the complaint upon which the judgment order for service is based, and must state every jurisdictional fact required by the statutes: McMillen v. Reynolds, 11 Cal. 372. If the affidavit be insufficient, the court acquires no jurisdiction over the defendant, and the judgment is void: Braly v. Seaman, 30 Cal. 610.

1. Section 56, Hill’s Code, so far as it applies to the case at bar, provides that when service of the summons cannot be had as prescribed in the preceding section, it may, by order of the court or judge, be served by publication, when the defendant is not a resident of the state, but has property therein, and cannot after due diligence, be found within the state, and that fact appears to the satisfaction of said court or judge, and it also appears that a cause of action exists against the defendant, and that the court has jurisdiction of the subject of the action. Plaintiff’s affidavit for such order shows when the complaint was filed, and the nature and object of the suit; that the defendants resided out of this state, and could not after due diligence be found therein, and the means adopted to ascertain said fact, and to discover their residence and postoffice address, which are given; that the suit relates to real property in this state, which is properly described; that they are proper parties thereto, and that copies of the complaint and lien were attached to and made a part thereof. The judge, upon presentation of said affidavit, made an order which, in substance, recites that it satisfactorily appeared therefrom that neither of said defendants could after due and diligent search and inquiry be found in the state of Oregon; that they reside out of said state; that a cause of suit existed in favor of plaintiffs against the said defendants; that personal service of the summons could not be made upon them, and directed the time and manner of the service by publication; but said order contained no finding that the defendants had any property within the state, or that the court had jurisdiction of the subject of the suit. The affidavit states all the probative facts necessary to justify the court in being satisfied of the existence of the ultimate facts required by the statute. Copies of the complaint and lien are made parts of the affidavit, and from each a correct description of the real property sought to be affected by the foreclosure of the lien can be ascertained. The complaint may be read with the affidavit, when made a part of it, for the purpose of aiding the latter: McDonald v. Cooper, 32 Fed. Rep. 745. All -that the statute requires from the court or judge, upon the presentation of the affidavit, if the jurisdictional facts satisfactorily appear therefrom, is to make an order, properly dated, that the publication be made in a particular manner for a reasonable time, and a direction that a copy of the summons and complaint be forthwith deposited in the postoffice, directed to the defendant, at his place of residence, if known: Hill’s Code, § 57. The affidavit must state the jurisdictional facts, and the order of the court or judge is the conclusion reached from such statements. Jurisdiction is based upon the affidavit, and not on the recitals of fact found in the order. If the judge had made findings which were not supported by the affidavit, and issued the order for publication upon such findings, the service of process would have been voidable. The affidavit in this case stated all the facts necessary to give the court or judge jurisdiction, and the order based thereon is sufficient without any recitals. When the order ha.s been granted it must be presumed that the jurisdictional facts have been established, but if they do not appear in the affidavit, this presumption is overcome, and the order thereby rendered void. When plaintiffs, under the provisions of section 3673, Hill’s Code, filed their lien, it attached to the property therein described, and this description having been copied into the affidavit the court obtained jurisdiction thereof, and the decree obtained under said service of summons by publication bound all said property.

2. Section 3677, Hill’s Code, provides that all lien-holders whose claims have been filed for record shall be made parties to a suit to foreclose the lien of any of them. The record shows that on the twenty-ninth day of August, 1891, E. E. Snow, Ira Erb, the Oregon Land Company, and íí. M. Wade & Co., filed claims with the clerk of said county for material furnished by each and used in the building upon which plaintiffs’ claimed their lien, and thus became proper parties to the suit, and when the stipulation was entered into that they might intervene therein, it was a recognition of their rights. When they filed their separate answers they did not thereby amend plaintiffs’ complaint, since it could not be amended by stipulation unless the defendants Coffee, Cragin & Stubbings had joined therein. Plaintiffs had the right to amend, but this could not be done except by filing and serving a copy of the amended pleading upon the adverse parties (Hill’s Code, § 99), and they not having exercised such right, there was no amendment. If it were admitted that the stipulation and answers amended the complaint and brought in new parties, then the summons which was served would be ineffectual to give the court jurisdiction; but the complaint not having been amended by the stipulation and answers, the summons contained’the statutory requirements necessary to give the court jurisdiction.

The manifest object of the statute which requires a plaintiff in foreclosing his lien to make all lien-holders parties is to save to the owners of the property all the expense possible. This object, so far as the defendants Coffee, Cragin & Stubbings are concerned, was accomplished, since the lien-holders who came in by stipulation failed to serve a summons upon them; and, the statute having run against their claims, the defendants have not only saved the costs and disbursements they would otherwise be liable for, but have also been relieved from the liens upon their property. The decree is appirmed.