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

• Decision Date: 11 March 1907
• Docket Number: 1,392.
• Parties: COHEN v. PORTLAND LODGE NO. 142, B.P.O.E. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

152 F. 357

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

No. 1,392.

United States Court of Appeals, Ninth Circuit.

March 11, 1907

This is a bill in equity brought by M. Cohen by his next friend Henry Mauser, to redeem lots 5 and 6 in block 83 in the city of Portland, from a mortgage executed by Nathan Cohen and wife father and mother of M. Cohen, on March 22, 1888, in favor of Joseph Hume. The original mortgage was to secure the payment of the sum of $4,000 which Nathan Cohen borrowed from Hume. Nathan Cohen died in September, 1891, leaving a widow and children. By the terms of the father's will the children were vested with an equitable title to an undivided interest in the above-described property. The provisions of the will designated trustees of the estate for the use and benefit of the children. By indorsement and transfer the mortgage passed into the hands of Henry J. Biddle, who brought suit in the state court for its foreclosure March 20, 1897. This plaintiff, M. Cohen, was made a party defendant in the foreclosure proceedings. At the time he was a minor under the age of 14 years, and service of summons by publication was attempted to be made upon him. Subsequently a guardian ad litem was appointed for defendant minor; default was taken against him, and on February 9, 1898, a decree was entered in the Circuit Court of the state of Oregon for Multnomah county, foreclosing the mortgage and directing the sale of the property. The property was sold pursuant to the foreclosure proceedings, and was bid in by one P. H. Blyth for $10,000. Thereafter, through conveyances it passed to the defendants Howes, Upson, and McDevitt, trustees for the defendant Portland Lodge No. 142, Benevolent Protective Order of Elks. The defendant Portland Trust Company of Oregon advanced money on a mortgage executed by the defendant Portland lodge and is therefore made a party defendant.

Appellant by answer relied upon the ground that the service had by publication against the minor was void and of no effect, and that he has never been divested of his undivided interest in the property. Testimony was taken which went to prove that at the time the foreclosure suit was brought in the state court appellant here (defendant in the foreclosure proceeding) was an inmate of the Pacific Hebrew Orphan Asylum in San Francisco. The boy was in the immediate custody of Henry Mauser in the asylum. There was some testimony taken as to the value of the property at the time of the mortgage foreclosure and sale. There was also testimony to show that no papers were ever received by Mr. Mauser as and for service upon the minor complainant, and this is one of the grounds upon which appellants attack the sufficiency of the service in the foreclosure proceeding. There was also evidence, tending to show that the minor complainant did not know about the service of the summons upon which the defendants here now rely until December, 1904. At that time appellant received a communication from the Lodge of Elks at Portland transmitting a quitclaim deed, and offering him $250 for it. He then sought advice as to his rights and in March 1905, instituted this suit. The Circuit Court held that upon the record of the action in foreclosure the service of the summons in the case of Biddle against the defendant therein complainant herein, was valid, and that it was not necessary that a copy of the complaint and summons should have been mailed to Mr. Henry Mauser at San Francisco, the person with whom this complainant resided at the time of the foreclosure proceedings. The complainant's bill was dismissed, and from a decree of dismissal appeal was thereafter taken to this court.

Zera Snow and Wallace McCamant, for appellant.

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

Before ROSS, Circuit Judge, and De HAVEN, and HUNT, District Judges.

HUNT District Judge (after stating the facts).

It is unnecessary to discuss at length the analytical distinctions sometimes drawn between what are called collateral and direct attacks upon judgments; for here the attempt to impeach the judgment rendered in the state court, being in an action other than that wherein the judgment was rendered, we can safely regard the proceeding as embraced within those attacks denominated collateral rather than direct. It is perfectly clear to us that the appellant cannot rely upon mere imperfection of statements, or even uncertainty of statement of jurisdictional facts in the affidavit for the order for the publication of summons obtained in the foreclosure suit. Nor can he admit that there was some evidence of the essential facts contained in the affidavit, yet contend that such evidence was not sufficient for the court to have acted upon. He must stand or fall upon the ground, not of irregularity or error, but that there was no evidence in the affidavit for an order of publication filed in the state court upon the points of residence and absence from the state of Oregon.

It is a fundamental principle that where jurisdiction is acquired against the person by the service of process, or by a voluntary appearance, a court of general jurisdiction will determine the matter in controversy between the parties. There is, however, a well-known exception to the application of this principle; that is, in cases where there is a special jurisdiction authorized by statute, though exercised by a court of general jurisdiction. And among the exceptional instances are methods of acquiring jurisdiction over persons not within a state. As to such methods the way as precisely pointed out by the statute must be followed. There can be no procedure except in cases authorized by the statute, and the statutory provisions for acquiring jurisdiction must be followed with exactness. In Boswell's Lessee v. Otis, 9 How. 336, 13 L.Ed. 164, the Supreme Court, through Justice McLean, said:

'When the record of a judgment is brought before the court, collaterally or otherwise, it is always proper to inquire whether the court rendering the judgment had jurisdiction. * * * It may be difficult in some cases to draw the line of jurisdiction so as to determine whether the proceedings of a court are void or only erroneous. And in such cases every intendment should be favorable to a purchaser at a judicial sale. But the rights of all parties must be regarded. No principle is more vital to the administration of justice than that no man shall be condemned in his person or property without notice, and an opportunity to make his defense. And every departure from this fundamental rule, by a proceeding in rem, in which a publication of notice is substituted for a service on the party, should be subjected to a strict legal scrutiny. Jurisdiction is not to be assumed and exercised in such cases upon the general ground that the subject-matter of the suit is within the power of the court. This would dispense with the forms of the law prescribed by the Legislature for the security of absent parties. The inquiry should be, have the requisites of the statute been complied with, so as to subject the property in controversy to the judgment of the court, and is such judgment limited to the property named in the bill. If this cannot be answered in the affirmative, the proceedings of the court beyond their jurisdiction are void.'

Presumptions in favor of jurisdiction are lacking in a case where service of summons by publication is had. In discussing presumptions where special powers are conferred upon courts-- and the power to order service of process upon a nonresident outside of the limits of the state is a proceeding had under special statutory authority-- the Supreme Court in Galpin v. Page, 85 U.S. 350, 371, 21 L.Ed. 959, said:

'But where the special powers conferred are exercised in a special manner, not according to the course of the common law, or where the general powers of the court are exercised over a class not within its ordinary jurisdiction upon the performance of prescribed conditions, no such presumption of jurisdiction will attend the judgment of the court. The facts essential to the exercise of the special jurisdiction must appear in such cases upon the record.'

Where the affidavit required by the statute for an order of publication of a summons states the evidence or makes an allegation concerning a jurisdictional fact, it will be understood to speak the truth on that point and it will not be presumed that there was other evidence respecting the fact or that the fact was otherwise than as averred. Galpin v. Page, supra. In the present case therefore, the record to which we must resort, and the only record to which we can resort, is the affidavit upon which the order of publication is expressly based. It is therein that the facts essential to the exercise of special jurisdiction must appear. We are limited to this one record because the order of publication in the foreclosure suit is based wholly upon the affidavit of one of counsel for the plaintiff, the court in the order of publication stating as follows:

'Upon reading and filing the affidavit of Warren E. Thomas, one of the attorneys for plaintiff in the above-entitled suit, and it satisfactorily appearing therefrom to me,' etc.

We proceed, therefore, to ascertain what the affidavit must contain, and then whether upon its face it shows a want of jurisdiction in the court that rendered the decree. The statute requires that both nonresidence and absence must exist and both must appear to the satisfaction of the court to exist before the court can grant an order that service shall be made by publication; and there must always be a showing by affidavit that due diligence has been used to find the defendant within the state. So we have three matters material to the ultimate point...