31 Mont. 488 | Mont. | 1904
delivered the opinion of the court.
This is an action brought by the Silver Camp Mining Company and another against Perdinand Dickert, to enforce the specific performance of a contract to convey certain real estate situate in Lewis and Clarke county, Montana, .and to compel the defendant Dickert to make an assignment of certain dividends.
Three questions are presented for solution: First. Is the action for specific performance of a contract to convey real estate one in personam? Second. Will service of summons by publication warrant a judgment in personam? Third. Does a general statute providing for the publication of summons in civil actions abrogate the common-law rule which requires personal service of summons in actions in personam?
1. As to the first question. Conceding that there may be some conflict in the authorities respecting this, the decided weight of authority is in favor of an affirmative answer, though the courts holding this view have not always been in harmony as to the reasons, or as to the extent to which the doctrine should be carried. As early as 3 Cushing this question was before the Supreme Court of Massachusetts, and, respecting it, that court said: “The simple question raised in the case is whether the court can proceed in this suit against the defendant, he not being at the commencement of the suit, or now, within the jurisdiction of this court, but being then and now an inhabitant of and within the state of Connecticut. This is strictly a proceeding in personam. There is but one person who is the party defendant, and he is not a passive party, but must be eminently active in the performance of any decree which may be made against him. The whole object of the bill is to compel the defendant to execute a conveyance of land, as is alleged, according to his contract.” (Spurr et al. v. Scoville, 3 Cush. 578.) This doctrine is reaffirmed by the same court in Davis v. Parker, 14 Allen, (Mass.) 94, and Merrill v. Beckwith, 163 Mass. 503, 40 N. E. 855.
The Supreme Court of Indiana, in Coon v. Cook, 6 Ind. 268, said: “Eor the reversal of this decree it is contended: (1) That the land In question, being in Hancock county, the circuit court of Henry county had no jurisdiction of the subject-matter in controversy. This objection is not tenable. We concur with the appellee’s counsel that the present, being a suit for a specific performance of a contract, operates on the person, and may properly be instituted in any county where the contractor resides.” This is approved and followed in Dehart v. Dehart, 15 Ind. 167.
In McQuerry v. Gilliland, 89 Ky. 434, 12 S. W. 1037, 7 L. R. A. 454, the court said: “The court is of the opinion that in case of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands, not within the jurisdiction of that court may be affected by the decree. In such case the subject-matter is not that
In Brown v. Desmond, 100 Mass. 267, the court said: “A. suit for specific performance of a contract for the conveyance of land proceeds in personam.” This doctrine is affirmed by the Supreme Court of Indiana in Bethell v. Bethell, 92 Ind. 318.
As if to place particular emphasis upon the view that -an action to enforce the specific performance of a contract to convey land operates strictly in personam, the chancery courts in England and of many of the states in this country have repeatedly held that such an action may be commenced in, and relief had from, a court having jurisdiction of the parties, even though the land to be affected lies in another state or in a foreign country. (Penn v. Lord Baltimore, 1 Ves. 444; Cranston v. Johnson, 3 Ves. Jr. 170; Ward v. Arredondo, 1 Hopk. Ch. 213, 14 Am. Dec. 543; Sutphen v. Fowler, 9 Paige, 280; Newton v. Bronson, 13 N. Y. 587, 67 Am. Dec. 89; Davis v. Headley, 22 N. J. Eq. 115; Massie v. Watts, 6 Cranch. (U. S.) 148, 3 L. Ed. 181.)
The doctrine is broadly stated by Story as follows: “The proposition may therefore be laid down in the most general form, that, to entitle a court of equity to maintain a bill for the specific performance of a contract respecting land, it is not necessary that the land should be situate within the jurisdiction of the state or country where the suit is brought. It is sufficient
As further illustrating the view that this character of action is purely in personam, and that a statute of the character of our Section 610 of the Code of Civil Procedure has no application to an action to enforce the specific performance of a contract for the conveyance of real estate, the Supreme Court of Washington, in Morgan v. Bell, 3 Wash. St. 554, 28 Pac. 925, 16 L. R. A. 614, said: “The first point argued by the appellant is that this is an action affecting the title to real estate, and should have been brought in Clallam county, where the land is situated, by virtue of Sectiqn 47 of the Code, which provides that actions for the recovery of, for the possession of, for the partition of, for the foreclosure of a mortgage on, or for the determination of all questions affecting the titles, or for any injuries to, real property, shall be commenced in the county or district in which the subject of action, or some part thereof, is situated. We do not think this is the character of cases contemplated by the statute. The title to this land was not in dispute, and could not be affected by the decree of the court, under the pleadings. It is true that the court could decree a specific performance of the contract, under the allegations of the complaint, but it would bo a decree affecting the parties to the action personally. It would not determine any question affecting the title, in the sense in which the word 'title’ is evidently employed in the statute.”
Eor the purpose of differentiating between the legal effects which flow from that class of actions wherein service of summons may be properly made by publication and actions strictly in personam, reference is had to the language used by the supreme court in Cooper v. Reynolds, 10 Wall. (U. S.) 308, 19 L. Ed.
2. As to the second question. If any doubt existed respecting the proper answer to be made to this inquiry, that doubt was settled by the Supreme Court of the United States in Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565. In 1866 J. II. Mitchell obtained a judgment in the district court of Oregon against Neff, a nonresident of Oregon, for services alleged to have been rendered to Neff. Summons was served by publication, and' Neff did not appear. Judgment was rendered by default. Execution was issued, and land belonging to Neff in Oregon was levied upon and sold to Pennoyer. Neff later returned and brought ejectment against Pennoyer, who pleaded title in himself, based upon the deed which he had received from the sheriff by virtue of the execution sale in Mitchell v. Neff. The validity of the judgment in Mitchell v. Neff was put directly in issue. Respecting the doctrine that a personal judgment can only be had after personal service of the defendant or his voluntary appearance in the action, the court said: “It is the only doctrine consistent with proper protection to citizens of other states. If, without personal service, judgments in personam, obtained ex parte against nonresidents and absent parties, upon mere publication of process, which, in the great majority of cases, would never be seen by the parties interested, could be upheld and enforced, they would be the constant instruments of fraud and oppression. Judgments for all sorts of claims upon contracts and for torts, real or pretended, would be thus obtained, under which property would be seized, when the evidence of the transactions upon which they were founded, if they ever had any existence, had
Pennoyer v. Neff, supra, is directly approved and followed by the supreme court in Hart v. Sansom, 110 U. S. 151, 3 Sup. Ct. 586, 28 L. Ed. 101, and the doctrine of that case reannounced in Leigh v. Green, 193 U. S. 79, 24 Sup. Ct. 390, 48 L. Ed. 623. That doctrine has also been followed by the courts of last resort of several states where it has been in issue.
In Eliot v. McCormick, 144 Mass. 10, 10 N. E. 705, it is said: “The Supreme Court of the United States has held, in recent decisions, that under this provision it is not competent for a state court to render a judgment in personam against a person who is not a resident of the state, who does not appear in the suit, and who is not served personally with process within the state. It is held that, where property of a nonresident defendant is found within the state, the state court may attach it on the writ, and may proceed t'o a judgment so far as to apply the property to the debt; but if there is no appearance of the de
In Needham, v. Thayer, 147 Mass. 536, 18 N. E. 429, the views of the court in Eliot v. McCormick, above, were adopted and followed, and it is there held that a judgment in personam against a person who is not a resident of the state in which the judgment is rendered, who has not been personally served in the state with summons, and who has not appeared in the action, is wholly void, and no suit can be maintained on it either in that or any other court; that the court obtained no jurisdiction, and its judgment has no force either in the state in which it is rendered or in any other state. Pennoyer v. Neff is also approved and followed in Bank v. Henry, 156 Ind. 1, 58 N. E. 1057.
In Hill v. Henry, 66 N. J E. 150, 57 Atl. 554, the Court of Chancery of New Jersey said: “The following propositions have been established by the supreme court: Eirst. That a personal judgment is without validity, if it be rendered by a state court in an action upon a money demand against a nonresident, proceeded against by publication, but not personally served with process within the state, and not appearing. Second. That no validity is imparted to such a judgment by the fact that the defendant has, at the time the action is commenced, property within the state, upon which a levy can be made under the judgment. (Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565.)”
The Supreme Court of Minnesota, in Cabanne v. Graf, 87 Minn. 510, 92 N. W. 461, 59 L. R. A. 735, 94 Am. St. Rep. 722, said: “Prior to the decision in the case of Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, it was the law of this state, and in some other jurisdictions, that, if a nonresident defendant had property in this state, its court had jurisdiction, without
“Pennoyer v. Neff, 24 L. Ed. 565, is the leading authority in support of the now well-settled proposition that, except as to proceedings affecting the personal status of the plaintiff, or in rem, or as to actions to enforce liens, or to quiet title, or to recover possession of property, or for the partition thereof, or to set aside fraudulent transfers thereof, or to obtain judgment enforceable against property seized by attachment or other process, no state can authorize its courts to compel a citizen of another state remaining therein to come before them and submit to their decision a mere claim upon him for a money demand, no matter what the prescribed mode of service of process against him may be. An attempt to do so is not due process of law.”
3. As to the third question. It is contended that it is competent for the state by statute to provide for valid service by publication in actions in personam. If this state has done so, the question of the constitutionality of such a statute might be involved. If it has not done so, that question is, of course, eliminated from consideration.
Section 637 of the Code of Civil Procedure provides: “When the person on whom the service of a summons is to be made, resides out of the state, or has departed from the state, or cannot, after due diligence, be found Avithin the state, or conceals him- ' self to avoid the service of the summons; or when the defendant is a foreign corporation, having no managing or business agent, cashier, secretary or other officer within the state, and an affidavit stating any of these facts is filed with the clerk of the court in which the action is brought, and such, affidavit also
Counsel for respondents cites Perkins v. Wakeham et al., 86 Cal. 580, 25 Pac. 51, 21 Am. St. Rep. 67, as sustaining the view that service of summons by publication in actions strictly in personam may be had under a statute similar to our Section 637, above, and there is an expression to be found in the opinion of the court in that case bearing out that idea, and that case is apparently cited with approval in Seculovich v. Morton, 101 Cal. 67, 36 Pac. 387, 40 Am. St. Rep. 106, in an action to have a trust declared and enforced, and in which we are unable to see any applicability of the doctrine announced in Perkins v. Wakeham. In Loaiza v. Superior Court, 85 Cal. 11, 24 Pac. 707, 20 Am. St. Rep. 197, the same court had at great length reviewed the cases, and put itself in harmony with the weight of authority as we have outlined it, and distinguished between the classes of cases where service of summons may be made by publication and where it may not be, and in the latter class included actions strictly m personam; and this case was not alluded to or overruled in either of the cases cited above.
An examination of the opinion in Perkins v. Wakeham, above, discloses that the decision of the court is made upon the theory that an action to quiet title, which was the form of action in that case, is one affecting the title to real estate. Whether that doctrine would be approved by this court is not decided; suffice it to say that the present action, being to enforce the specific performance of a contract, is not one which affects title to real estate, for, if it did, it could only be tried in the county where the real estate is situated, whereas the authorities are practically unanimous in holding that such an action may be tried where jurisdiction of the defendant is obtained, without reference to the location of the real estate.
In Roller v. Holly, 176 U. S. 398, 20 Sup. Ct. 410, 44 L. Ed. 520, a statute of Texas, as broad in its provisions as our Section 637, above, was under consideration, and, respecting it, the court said: “It is true there is no statute of Texas specially authorizing a suit against a nonresident to enforce an equitable lien for purchase money, but Article 1230 of the Code of Texas, hereinafter cited, contains a general provision for the institution of suits against absent and nonresident defendants, and lays down a method of procedure applicable to all such cases. Obviously this Article has no application to suits in personam, as was held by the Supreme Court of Texas in York v. State, 73 Tex. 651, 11 S. W. 869; Kimmarle v. Houston & Texas Central Railway, 76 Tex. 686, 12 S. W. 698; Maddox v. Craig, 80 Tex. 600, 16 S. W. 328; and by this court in Pennoyer v. Neff, 95 U. S. 714, 723, 24 L. Ed. 565. The Article must then be restricted to actions in rem; but to what class of actions, since none is mentioned specially in this Article ? We are bound to give it some effect. We cannot treat it as wholly nugatory, and, as it is impossible to say that it contemplates a procedure in one class of cases and not in another, we think the only reasonable construction is to hold that it applies to all cases where, under recognized principles of law, suits may be instituted against nonresident defendants.” We prefer to adopt this view as more in consonance with reason and the general practice which has heretofore prevailed throughout this country.
The other questions involved in this case need not be considered.
The court had no jurisdiction of the defendant. The judgment rendered is nugatory and is reversed and the cause remanded.
Reversed and remanded.