Cohen v. Portland Lodge 142, B.P.O.E.

• Decision Date: 05 March 1906
• Docket Number: 2,974.,2,926
• Citation: 144 F. 266
• Parties: COHEN v. PORTLAND LODGE NO. 142, B.P.O.E. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

144 F. 266

COHEN v. PORTLAND LODGE NO. 142, B.P.O.E. et al.

Nos. 2,926, 2,974.

United States Circuit Court, D. Oregon.

March 5, 1906

Snow and McCamant, for complaint.

H. H Northup and Bernstein & Cohen, for defendants.

WOLVERTON District Judge (after stating the facts).

The affidavit upon which the order for publication is based was made by one of the attorneys for plaintiff in the foreclosure suit, and sets out:

'That the amended complaint in said suit was filed with the clerk of said court on the 19th day of November, 1897, and summons thereupon issued. * * * That said summons issued as aforesaid was delivered to the sheriff of Multnomah county state of Oregon, with directions to said sheriff to serve the same upon the defendants and each of them, and said sheriff has returned said summons to the clerk of this court with his return endorsed thereon to the effect that said defendants Aaron M. Cohen, Moses M. Cohen, and Emanuel Meyer cannot, after due diligence, be found within this state, although diligent search and inquiry for the purpose of finding them have been made. That this affiant has made diligent search and inquiry for the purpose of finding the last-named defendants and each of them as follows: I have inquired of the defendant M. C. Lyon, who is one of the executors of the last will and testament of Nathan Cohen deceased, the father of said defendants, Aaron M. Cohen and Moses M. Cohen, and he informs me that neither of said minors is at this time within the state of Oregon, and that both of them are at the present time residents of and now are at the Pacific Hebrew Orphan Asylum & Home Society, at No. 600 Devisadero, corner Hayes street, in the city of San Francisco, state of California, and that it their present post-office address. That the said M. C. Lyon informs me that he knows personally that said minors are at said place, as he placed them at said institution, which said institution is a school, and that he is in constant communication with the authorities there, and that he has charge of their schooling and education. * * * That this affiant, said defendants Aaron M. Cohen, Moses M. Cohen, and Emanuel Meyer, and prays for an order that service of the same may be made by publication thereof as is by law provided.'

The pivotal question presented for determination is whether this affidavit is sufficient, considered in relation to the cause now pending, upon which to support the order of the court in directing that service of summons upon the plaintiff herein, as defendant in said cause, be made by publication thereof. It should be stated, preliminarily, that the present suit is, in its nature and effect, a collateral attack upon the decree in the foreclosure suit. It does not purpose annulling or vacating such decree, but it proceeds upon the idea that, standing unreversed, with all the force it is entitled to under the law, it is not as impediment to plaintiff's obtaining the relief sought. Indeed, plaintiff concedes, by the very form of suit adopted, that it has some operative effect; for he says that the defendant has, by virtue thereof, been subrogated to the interests of the mortgagee. The true position of plaintiff, however, is that such decree as it now stands is void as to him, without any affirmative action of the court rendering it so, and that, so standing, it is not an impediment to his right to redeem. This is a collateral as contradistinguished from a direct attack upon such decree. Morrill v. Morrill, 20 Or. 96, 25 P. 362, 11 L.R.A. 155, 23 Am.St.Rep. 95.

It may be further premised, in a general way, that the judgment or decree of a superior court intrusted with general jurisdiction, acting within the scope of its ordinary powers and in pursuance of the course of the common law, is aided by an attendant presumption that jurisdiction was regularly acquired, as to both the subject-matter and the person, until the contrary appears. The presumption supplies any omission, where the record is silent as to the essential steps required to be taken or observed as a prerequisite to the acquirement of jurisdiction. Where, however, the record speaks respecting facts or conditions upon which jurisdiction has been assumed, it will import verity, and nothing different or to the contrary will be presumed in aid of the consequent adjudication. If it were otherwise, collateral attack would be unknown to the law, as the presumption would not only supply all omissions, but would also transform a bad and utterly insufficient record into a good and ample one, supporting the judgment or decree in every prescribed essential. The presumption is not to be indulged where the court is possessed of special and limited powers only, unless it may be in so far as it proceeds according to the course of the common law in the acquirement of jurisdiction over the person or the res; nor is it to be indulged where the process prescribed for the acquirement of jurisdiction is special, and not according to the course of common law, as where constructive service of summons is authorized to be made upon persons not within the territorial jurisdiction of the court. In all such cases the essential statutory prerequisites should appear to have been observed under what is usually termed a 'strict construction,' because in derogation of the common law. 17 Am.&Eng. Encyclopedia of Law (2d Ed.) pp. 1073 to 1080, inclusive; Galpin v. Page, 18 Wall. 350, 21 L.Ed. 959; Odell v. Campbell, 9 Or. 298; Northcut v. Lemery, 8 Or. 316. But this rule requires nothing to be incorporated in the record that the statute does not so require, and, if omissions appear with reference to the entry of such prerequisites to jurisdiction, the presumption will even then supply the deficiency. Applegate v. Lexington, etc., Mining Co., 117 U.S. 255, 56 Sup.Ct. 742, 29 L.Ed. 892.

This brings me to a consideration of the sufficiency of the affidavit to support the order made and entered requiring service of summons by publication. Section 56 of the statute of the state of Oregon (B. & C. Comp.) provides that when service of summons cannot be made as prescribed by section 55-- that is, upon the person or constructively so, as at his dwelling house or usual place of abode-- and the defendant, after due diligence, cannot be found within the state, and that fact is made to appear by affidavit to the satisfaction of the court or judge thereof, it or he may grant an order that service be made by publication thereof, in either of three cases; the last being when the defendant is not a resident of the state, but has property therein, and the court has jurisdiction of the subject of the action.

There is no question here as it respects the court's jurisdiction of the subject-matter, and it fully appeared that the defendant had property within the state. From this reading it is manifest that the statute has made it a judicial function of the court or judge to determine from the affidavit whether the plaintiff has been unable, after the exercise of due diligence, to obtain personal service of summons upon the defendant, within the territorial jurisdiction of the court; and this includes the determination, as well, as to whether due diligence has been observed. The sufficiency of the affidavit may be brought to a test upon appeal, or it may be upon a collateral issue such as this; but the basis of inquiry is vitally and radically different in the one case from that of the other. On appeal the question is whether the court or judge has erred in granting the order. What the trial court may have deemed legally sufficient may not be so in the opinion of the appellate tribunal. At the worst, the consequence might be a reversal, and the cause sent back for further proceeding. The party is not sent out of court finally. But, when considered collaterally, the question is whether the affidavit contains matter which, in contemplation of the statute, is sufficient upon which the court or judge was warranted in passing the order. The question becomes one, not of error, but whether there is any evidence legally sufficient upon which the judicial mind may be satisfied. If not, the order is absolutely void, and the court is without any subsequent jurisdiction; and so is any final adjudication void, and without force or effect. The result is that the party is left without the opportunity of amendment, and is driven to another suit, if any will avail him. The principle is well defined, and has the sanction of adjudicated cases. In Forbes v. Hyde, 31 Cal. 342, 349, Mr. Justice Sawyer says: 'There is a marked distinction between an affidavit which presents some evidence on a vital point, but clearly of a character too unsatisfactory to justify an order for publication of summons based upon it, and an affidavit which presents no evidence at all tending to prove the essential fact. In the former case the judge might be satisfied upon very slender and inconclusive testimony; but, there being some appreciable evidence of a legal character which calls into action the judgment of the judge, he has jurisdiction to consider and pass upon it. He may be wholly and egregiously wrong in his conclusion upon the weight of the evidence, but he had jurisdiction to act upon it, and his action is simply erroneous. His order would, in such case, be reversed on appeal. But, as there was jurisdiction to act, until reversed, or attacked by some direct proceeding to annul it, the order and judgment based upon it would be valid. Such a judgment could not be collaterally attacked. If, however, there is a total want of evidence on any point necessary to be determined, upon which the law requires the mind of the judge to be satisfied as a prerequisite for granting an order of publication, then there is nothing...