292 F. 382 | E.D. Wash. | 1923
No civil suit shall be brought in any district against any person by original process other than that whereof he is an inhabitant; but, where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant. Section 51, Judicial Code (Comp. St. § 1033). In suits of a local nature, where the defendant resides in a different district in the same state from that in which the suit is brought, the plaintiff may have original and final process against -him, directed to the marshal of the district in which he resides. Section 54, Judicial Code (Comp. St. § 1036). In a suit to enforce any legal or equitable lien upon, or remove a cloud upon, the title of property within the district where the suit is brought, and some of the defendants are not inhabitants or found within the district and do not voluntarily appear, the court may make an order directing such absent defendants to appear at a stated time, and in case of default the court may proceed to the hearing and adjudication; but the adjudication is limited with relation to the absent defendants to the property in suit. Section 57, Judicial Code (Comp. St. § 1039).
The rule is well stated by Simkins, at page 94, that, in personam
The object of the complaint is to compel the defendants to execute a conveyance or specifically perform a contract for the sale of land. This is a proceeding in personam. The only question raised by the special appearance is whether the court can proceed in this suit against the defendants Eaves, not inhabitants of nor within the state of Washington. That a suit for specific performance of contraer is a personam proceeding has been from early days confirmed. Spurr et al. v. Scoville, 3 Cush. (Mass.) 578, reaffirmed in Davis v. Parker, 14 Allen (Mass.) 94; Merrill v. Beckwith, 163 Mass. 503, 40 N. E. 855. This doctrine has obtained in the state of Washington from territorial days. Woods v. Mastick, 2 Wash. T. 64, 3 Pac. 612; Morgan v. Bell, 3 Wash. 554, 28 Pac. 925, 16 L. R. A. 614; State ex rel. Scougale v. Superior Court, 55 Wash. 328, 104 Pac. 607, 133 Am. St. Rep. 1030. The contract declared upon does not disclose any trust relation as to entitle enforcement of a trust, and bring the issue within the provisions of sections of the statute, supra. Merrill v. Beckwith, supra. The real estate in a suit for specific performance of contract is not affected. The court having jurisdiction of the parties is invested with power to proceed to final decree and direct by coercion the necessary relief. Johnson v. Gibson, 116 Ill. 294, 6 N. E. 205; Massie v. Watts, 6 Cranch, 159, 3 L. Ed. 181; Gilliland v. Inabnit, 92 Iowa, 46, 60 N. W. 211; Brown v. Desmond, 100 Mass. 269. In Massie v. Watts, Chief Justice Marshall said:
“In a case of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable whenever the person be found, although lands not within the jurisdiction of that court may he affected by the decree.”
In McGee v. Sweeney, 84 Cal. 100, 23 Pac. 1117, in an action to declare a deed to certain land in Pennsylvania void and decree a re-
‘“It is well settled, however, that a court of equity has power to compel a reconveyance of property outside of its jurisdiction, by reason of its control over tbe parties before it.”
Chief Justice Fuller, in Carpenter v. Strange, 141 U. S. 87, 11 Sup. Ct. 960, 35 L. Ed. 640, said, in relation to a decree of the New York court affecting real estate situated in Tennessee and governed by the law of its situs, that a court of equity may in a proper case compel action with relation to the property, the court having jurisdiction of the parties, and that while the decree does not act directly upon the property, nor affect the title, it is made effectual through coercion by directing a deed or cancellation by or on hehalf of. the parties, and this is merely a reiteration of the sentiment of the thought in Phelps v. McDonald, 99 U. S. 298, 25 L. Ed. 473, restating the former holding of 1he Supreme Court.
This being an action to compel specific performance of a contract to convey land, disassociated from any element of trust, is an action in personam, and, the court not having jurisdiction of the defendants Eaves, residents of Idaho, the motion is sustained.