Weil v. Lowenthal

| Iowa | Oct 6, 1860

BaldwiN, J.

Two objections are made by the appellant to the sufficiency of the notice and service to give the District Court jurisdiction over the appellant. The notice was served by the sheriff of Scott county, upon the defendant in the State of .Illinois; and his return is made upon said notice by him as the sheriff of said county. The return is afterwards amended by' said sheriff by adding his affidavit thereto, in which he states that the service upon the appellant was made in the manner and form as set forth in his original return.

This service is clearly defective. The sheriff of Scott county had no power, as such officer, to serve the notice outside of the limits of his bailwick; much less outside of the ' boundary line of his State. The affidavit does not aid the defective service. Under sections 1718 and 1732 of the Code, the original notice may be served by any person not a party to the suit. When not made by the sheriff, the service may be proved by the affidavit of the person who made the same. This return is made by the sheriff in his official capacity. The affidavit does not change the character of the return. It only strengthens it (if anything,) by showing that it was done in the manner and form therein set forth. What mannér and form ? Merely that he served the same as sheriff of Scott county, by reading the notice to appellant in the State of Illinois.

The second question presented by appellant is, admitting that the service had been made in a proper manner, would this have given the court jurisdiction over the person of appellant? The plaintiff sought to recover a personal judgment. It was not a proceeding against defendant’s property, and tbe ruling of tbe court must have been based upon a construction of section 1718 of tbe Code, that tbe service of tbe original notice can be made upon a party out of tbe State as well as witbin it. We will regard it as conceded that tbe appellant was not a resident or citizen of this State. If be bad been, tbe proper mode of service would have been to have left a copy of sucb notice at bis usual place of residence, be not being found. Tbe presumption is, that be was a citizen of Illinois when tbe service was made. As a citizen of a sister State, be owed no allegiance nor was be amenable to tbe laws of this State, unless found witbin its jurisdiction. Tbe constitution of our State does not give, nor can tbe legislature by any enactment confer, upon tbe District Court, jurisdiction over tbe person of a citizen of another State. This doctrine is so well settled, and carries with it so much common sense and justice, that we regard it as useless to add anything further in support of it. Sucb a construction is also contradictory to tbe provision of section 1701, which provides that if tbe person about to be sued has no residence witbin tbe State, be may be sued in tbe county wherein be may be found. Story in bis work upon tbe Conflict of Laws, section 589, says, “no sovereignty can extend its process beyond its own territorial limits to subject either person or property to its judicial decisions. Every exertion of authority of this sort beyond this limit is a mere nullity, and incapable of binding sucb persons or property in any other tribunals.”

We do not consider that tbe appellant waived tbe objection to tbe jurisdiction of tbe court by bis special appearance. Tbe decision of this court in tbe case of Ulmer et al. v. Hiatt et al., 4 G. Greene 439, recognizes tbe practice and tbe right of tbe defendant to appear specially and plead to jurisdictional questions.

Judgment against tbe appellant is reversed.