Neff Uae

[Magnhild Mongolo]

Mitchellsued Neff for legal fees that Neff allegedly owed to him. The action was brought in Oregon, where Neff owned real property but was not a resident. After Neff was served by publication notice, he failed to respond, and Mitchell ultimately received a default judgment. Neff's land was sold at a sheriff's sale to satisfy the judgment, and Pennoyer bought it. Neff later sued in Oregon court to recover the property, once he found out about the sale, and he argued that the sale was improper because the court that issued the judgment against him did not have personal jurisdiction over him. This would have prevented it from adjudicating the personal rights between the two parties.

People or property outside the boundaries of a state may not be subject to its direct jurisdiction, and substituted service of process in actions against non-residents may be permitted only for in rem actions. There could be no judgment regarding the personal rights of the parties without personal jurisdiction, so the sale was void. However, the sale would have been valid if the plaintiff had attached the real property in the state when the action was brought, which would have conferred in rem jurisdiction.

States have the authority to control and regulate property within their borders, even if that regulation affects the rights of people and property outside the state. This power does not extend to bringing people or property outside the state into its jurisdiction.

1. A statute of Oregon, after providing for service of summonsupon parties or their representatives, personally or at theirresidence, declares that, when service cannot be thus made, and thedefendant, after due diligence, cannot be found within the State,and

"that fact appears, by affidavit, to the satisfaction of thecourt or judge thereof, and it, in like manner, appears that acause of action exists against the defendant, or that he is aproper party to an action relating to real property in the State,such court or judge may grant an order that the service be made bypublication of summons . . . when the defendant is not a residentof the State, but has property therein, and the court hasjurisdiction of the subject of the action,"

-- the order to designate a newspaper of the county where theaction is commenced in which the publication shall be made -- andthat proof of such publication shall be "the affidavit of theprinter, or his foreman, or his principal clerk."

Held, that defects in the affidavit for the order canonly be taken advantage of on appeal, or by some other directproceeding, and cannot be urged to impeach the judgmentcollaterally, and that the provision as to proof of the publicationis satisfied when the affidavit is made by the editor of thepaper.

2. A personal judgment is without any validity if it be renderedby a State court in an action upon a money demand against anonresident of the State who was served by a publication ofsummons, but upon whom no personal service of process within theState was made, and who did not appear; and no title to propertypasses by a sale under an execution issued upon such ajudgment.

3. The State, having within her territory property of anonresident, may hold and appropriate it to satisfy the claims ofher citizens against him, and her tribunals may inquire into hisobligations to the extent necessary to control the disposition ofthat property. If he has no property in the State, there is nothingupon which her tribunals can adjudicate.

property is once brought under the control of the court byseizure or some equivalent act, but where the suit is brought todetermine his personal rights and obligations, that is, where it ismerely in personam, such service upon him is ineffectualfor any purpose.

5. Process from the tribunals of one State cannot run intoanother State and summon a party there domiciled to respond toproceedings against him, and publication of process or of noticewithin the State in which the tribunal sits cannot create anygreater obligation upon him to appear. Process sent to him out ofthe State, and process published within it, are equally unavailingin proceedings to establish his personal liability.

6. Except in cases affecting the personal status of theplaintiff, and in those wherein that mode of service may beconsidered to have been assented to in advance, the substitutedservice of process by publication allowed by the law of Oregon andby similar laws in other States where actions are brought againstnonresidents is effectual only where, in connection with processagainst the person for commencing the action, property in the Stateis brought under the control of the court and subjected to itsdisposition by process adapted to that purpose, or where thejudgment is sought as a means of reaching such property oraffecting some interest therein; in other words, where the actionis in the nature of a proceeding in rem.

7. Whilst the courts of the United States are not foreigntribunals in their relations to the State courts, they aretribunals of a different sovereignty, and are bound to give ajudgment of a State court only the same faith and credit to whichit is entitled in the courts of another State.

8. The term "due process of law," when applied to judicialproceedings, means a course of legal proceedings according to thoserules and principles which have been established by ourjurisprudence for the protection and enforcement of private rights.To give such proceedings any validity, there must be a competenttribunal to pass upon their subject matter, and if that involvesmerely a determination of the personal liability of the defendant,he must be brought within its jurisdiction by service of processwithin the State, or by his voluntary appearance.

This action was brought by Neff against Pennoyer for therecovery of a tract of land situated in Multnomah County, Oregon.Pennoyer, in his answer, denied Neff's title and right topossession, and set up a title in himself.

By consent of parties, and in pursuance of their writtenstipulation filed in the case, the cause was tried by the court,and a special verdict given, upon which judgment was rendered infavor of Neff; whereupon Pennoyer sued out this writ of error.

1866; and Pennoyer by virtue of a sale made by the sheriff ofsaid county, under an execution sued out upon a judgment againstNeff, rendered Feb. 19, 1866, by the Circuit Court for said county,in an action wherein he was defendant and J. H. Mitchell wasplaintiff. Neff was then a nonresident of Oregon.

In Mitchell v. Neff, jurisdiction of Neff was obtainedby service of summons by publication. Pennoyer offered in evidenceduly certified copies of the complaint, summons, order forpublication of summons, affidavit of service by publication, andthe judgment in that case, to the introduction of which papers theplaintiff objected because, 1, said judgment is inpersonam, and appears to have been given without theappearance of the defendant in the action or personal service ofthe summons upon him, and while he was a nonresident of the State,and is, therefore, void; 2, said judgment is not in rem,and therefore constitutes no basis of title in the defendant; 3,said copies of complaint, &c., do not show jurisdiction to givethe judgment alleged, either in rem or personam;and, 4, it appears from said papers that no proof of service bypublication was ever made, the affidavit thereof being made by the"editor" of the "Pacific Christian Advocate," and not by "theprinter, or his foreman or principal clerk." The court admitted theevidence subject to the objections.

That, on Nov. 13, 1865, Mitchell applied to said Circuit Court,upon his own affidavit of that date, for an order allowing theservice of the summons in said action to be made upon Neff bypublication thereof, whereupon said court made said order, in thewords following:

"Now, at this day, comes the plaintiff in his proper person, andby his attorneys, Mitchell and Dolph, and files affidavit ofplaintiff, and motion for an order of publication of summons, asfollows, to wit:"

"Now comes the plaintiff, by his attorneys, and upon theaffidavit of plaintiff, herewith filed, moves the court for anorder of publication of summons against defendant, as required bylaw, he being a nonresident;"

found in this State, and that he is a nonresident thereof, thathis place of residence is unknown to plaintiff, and cannot, withreasonable diligence, be ascertained by him, and that the plaintiffhas a cause of action of action against defendant, and thatdefendant has property in this county and State, it is ordered andadjudged by the court that service of the summons in this action bemade by publication for six weeks successively in the 'PacificChristian Advocate,' a weekly newspaper published in MultnomahCounty, Oregon, and this action is continued for such service."

"I, J. H. Mitchell, being first duly sworn, say that thedefendant, Marcus Neff, is a nonresident of this State; that heresides somewhere in the State of California, at what place affiantknows not, and he cannot be found in this State; that plaintiff hasa just cause of action against defendant for a money demand onaccount; that this court has jurisdiction of such action; that thedefendant has property in this county and State."

That the complaint in said action was verified and filed on Nov.3, 1865, and contained facts tending to prove that, at that date,said Mitchell had a cause of action against said Neff for servicesas an attorney, performed "between Jan. 1, 1862, and May 15, 1863."That the entry of judgment in said action contained the followingaverments:

"And it appearing to the court that the defendant was, at thetime of the commencement of this action, and ever since has been, anonresident of this State; and it further appearing that he hasproperty in this State, and that defendant had notice of thependency of this action by publication of the summons for sixsuccessive weeks in the 'Pacific Christian Advocate,' a weeklynewspaper of general circulation published in Multnomah County,State of Oregon, the last issue of which was more than twenty daysbefore the first day of this term."

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