Dillon v. Heller

• Decision Date: 09 June 1888
• Citation: 18 P. 693,39 Kan. 599
• Parties: JOHN H. DILLON v. MARTIN HELLER
• Court: Kansas Supreme Court

18 P. 693

39 Kan. 599

JOHN H. DILLON v. MARTIN HELLER

Supreme Court of Kansas

June 9, 1888

Error from Harper District Court.

ACTION brought by Martin Heller against John H. Dillon, to quiet the title to lot number 10, block number 33, in the city of Anthony, in Harper county. Personal service of summons could not be obtained upon the defendant in Kansas; hence the plaintiff filed an affidavit for service of summons by publication, which (omitting court and title) reads as follows:

"Isaac A. Love, being first duly sworn, says: That he is attorney for the plaintiff herein; that service of summons herein cannot be made upon the defendant in this state; that the defendant is a non-resident of this state, and that the above action is in relation to real estate situated within the state, in which the defendant claims an interest, and that the relief demanded is to exclude the defendant from any interest therein.

ISAAC A. LOVE.

"Subscribed and sworn to before me, this 25th day of August, 1886.

[Seal.]

F. O MOTT, Clerk District Court."

The notice to the defendant was duly published for three consecutive weeks in the Anthony Republican, a weekly newspaper printed and published in the city of Anthony in said county, and having a general circulation in the county. Said notice (omitting court and title) reads as follows:

"NOTICE TO NON-RESIDENT.--The defendant, John H. Dillon, is hereby notified that he has been sued by the plaintiff in the above-entitled action in the above court, and that he must answer the petition of the plaintiff in said action filed, on or before the 11th day of October, 1886, or the same will be taken as true, and judgment will be rendered, quieting the title in the plaintiff to the following-described real estate, situated in Harper county, state of Kansas, to wit Lot ten, in block thirty-three, in the city of Anthony.

"Witness my hand and the seal of said court, this -- day of August 1886.

[Seal.]

F. O MOTT, Clerk District Court."

The defendant made a special appearance, and moved the court to quash the service by publication, for the following reasons, to wit:

"First, that the same does not run in the name of the state of Kansas; second, that the court cannot acquire jurisdiction of the person in these cases to quiet title by such service, to wit, service by publication."

On January 23, 1887, this motion was overruled, and the defendant making no further appearance in the case, the court rendered judgment as upon a default in favor of the plaintiff and against the defendant, quieting the plaintiff's title to the above-mentioned real estate, and for costs. The defendant brings the case to this court for review.

Judgment affirmed.

R. B. Shepard, for plaintiff in error.

Isaac A. Love, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE,J.:

The plaintiff in error, who was defendant below, claims that the court below erred in the following particulars and for the following reasons, to wit:

"1. That service of summons by publication in actions to 'quiet title' is not sufficient to give the court jurisdiction of the party defendant.

"2. That the court, not having jurisdiction of the party defendant, cannot pronounce judgment in the matter.

"3. That the service by publication is null and void and of no effect because it does not run in the name or style of 'The state of Kansas.'

"4. That the service by publication is null and void for the reason that it is not dated of the day and date issued.

"5. That the affidavit to secure service by publication is wholly insufficient to base a service by publication upon.

"6. That the judgment is void and null for the reason that it was obtained without any evidence whatever."

While the plaintiff in error does not in terms claim that a court cannot in any case where the defendant is a non-resident and out of the state, obtain jurisdiction to hear and determine the case by virtue of a service of summons only by publication, yet such is the result of his argument; and in support of such argument he cites a number of authorities the principal of which is the case of Hart v. Sansom, 110 U.S. 151, We do not think, however, that the authorities cited go to the extent claimed for them. Of course a court cannot obtain jurisdiction of the person of a non-resident defendant by means only of a service of summons by publication, nor can a court obtain jurisdiction of the person of any person who is a non-resident and out of the state, by any kind of service, or by any kind of process or notice; for the jurisdiction of the courts of any sovereignty can never extend beyond the domain of the sovereignty which creates them. (Amsbaugh v. Exchange Bank, 33 Kan. 100, 105.) No court in Kansas can compel a nonresident defendant out of the state to come within its territorial boundaries, or to submit himself to its jurisdiction, or to do or perform any other act or thing; but this lack of power on the part of the court does not depend upon the character of the service of process made upon the defendant, but it arises from the well-established doctrine that the jurisdiction of one sovereignty (through its courts or otherwise) cannot extend into the territorial boundaries of another sovereignty. Therefore, for the purposes of this case, it will be admitted that the court below did not have jurisdiction of the person of the defendant below, plaintiff in error. But that does not settle this controversy. The court below had jurisdiction of something. It had jurisdiction of the plaintiff below, and it had jurisdiction of the subject-matter of the action. This latter proposition, however, is questioned. Jurisdiction is of two kinds: jurisdiction of the person, and jurisdiction of the property or thing in controversy; or, in other words, jurisdiction in personam, and jurisdiction in rem; and jurisdiction in either case is sufficient to authorize a valid judgment to be rendered. Now it may be admitted, for the purposes of this case, and is admitted, that the old equitable action to quiet title to real estate was purely an action in personam; and indeed it will be admitted that originally every action in equity was purely an action in personam, but such is not the case under the statutes of this state, and such is not the case with respect to the present action. The present action is purely a statutory action brought by the plaintiff under § 594 of the civil code, and is one of a kind of actions which can be maintained only by a person who is in the actual possession of the property in controversy, either by himself or tenant. Where personal service of summons can be obtained in such an action, the action is one in personam as well as in rem; but where service of summons can be had only by publication, then the action is one only in rem. The present action is one only in rem; and the court below had ample jurisdiction to hear and determine the same. For the present, we shall assume that the statutes authorizing service of summons by publication were strictly complied with in the present case, and then the only question to be considered is whether the statutes themselves are valid; or, in other words, we think the question is this: Has the state any power through the legislature and the courts, or by any other means or instrumentalities, to dispose of or control property in the state belonging to non-resident owners out of the state, where such...