Adams v. Heckscher

• Decision Date: 15 May 1897
• Citation: 80 F. 742
• Parties: ADAMS et al. v. HECKSCHER.
• Court: U.S. District Court — Western District of Missouri

80 F. 742

ADAMS et al. v. HECKSCHER.

United States Circuit Court, W.D. Missouri, Central Division.

May 15, 1897

Thos M. Jones, for plaintiffs.

Noble &amp Shields and J. B. Harrison, for defendant.

PHILLIPS District Judge.

The case has been submitted to the court upon the motion to dismiss the suit. The action was instituted in the state court of Phelps county, and, on petition of defendant, was removed into this court. In the state court, and prior to the petition for removal, the defendant appeared specially, for the purpose of the motion only, and moved the court to dismiss the suit, for the reason--First, that the court had no jurisdiction of the person of the defendant; second, for the reason that there was no proper service of summons made on the defendant; and, third, for the reason that the defendant, at the time of the institution of the suit, was a nonresident of the state, and attempt was made to bring him in by substituted service by personal summons made upon him in the state of Pennsylvania, and that, the suit being in effect a proceeding in personam, and not in rem, it was not within the provisions of the statute authorizing such substituted service.

The attempted service of summons on defendant in the state of Pennsylvania is clearly bad, for the reasons that process in that state was not served upon the defendant in person, as required by section 2022, Rev. St. Mo. 1889; and second, because the affidavit of such service made by the sheriff was not made before the clerk of the court, as required by the statute but was made before a deputy. Murdock v. Hillyer, 45 Mo.App. 287. No such substituted service of process was authorized in this case, for the reason that it neither appears by the petition nor in any affidavit thereto that the defendant was a nonresident of the state, or out of the jurisdiction of the state circuit court, where the suit was instituted.

After the removal of the cause into this court, the case must proceed just as this court finds it when it is removed from the state court. Tallman v. Railroad Co., 45 F. 156. Nor is it apparent that on the petition, as it stands, this court could have any jurisdiction to afford the relief sought therein. To give the state court jurisdiction to proceed against the nonresident defendant upon substituted service without the appearance of the defendant to the merits of the suit, the proceeding must be one essentially in rem. It may be conceded to the plaintiffs that in view of sections 2225-2227, Rev. St. Mo. 1889, an action for specific performance of a contract for the sale conveyance of real estate may be so maintained, under the state statute, as a judgment therein may be enforced by directing the conveyance of the property, without requiring of the defendant the performance of any personal act. But for this statute, a suit for specific performance would partake essentially of the nature of a proceeding in personam. Olney v. Eaton, 66 Mo. 563-567; Bennett v. Fenton, 41 F. 283. What is the nature and object of this suit? It is predicated on a contract for the sale and purchase of real estate. By the terms of the contract, the defendant was to furnish to the plaintiffs a complete abstract of the title, and to convey to them a perfect title to the land. While the petition in this case is somewhat ambiguous, the gravamen of the complaint is that the deed to the land tendered by the defendant to the plaintiffs was imperfect in its title; that it did not describe the proper land; that the defendant has failed to furnish the abstract as provided in the...