Earle Et Al v. Veigh

Decision Date01 October 1875
Citation91 U.S. 503,23 L.Ed. 398
PartiesEARLE ET AL. v. McVEIGH
CourtU.S. Supreme Court

APPEAL from the Circuit Court of the United States for the Eastern District of Virginia.

Mr. S. F. Beach for the appellants.

Mr. P. Phillips, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

Due notice to the defendant is essential to the jurisdiction of all courts, as sufficiently appears from the well-known legal maxim, that no one shall be condemned in his person or property without notice, and an opportunity to be heard in his defence. Nations v. Johnson, 24 How. 203.

Such notice may be actual or constructive, as prescribed by law. Where actual notice is required, personal service, in a legal manner, of due process, is a compliance with the requirement; and, in cases where constructive notice is allowed, the duty of the moving party is fulfilled if he complies in every respect with the law, usage, or rule of practice, as the case may be, which prescribes that mode of service.

Two suits were commenced by the respondents against the present complainant, and his son, who was not served, to enforce the payment of the several promissory notes described in the declarations in those suits; and the plaintiffs therein obtained service of process in the respective suits on the same day in the words following:——

'Executed the within summons Feb. 24, 1862, on James H. McVeigh, by leaving a copy thereof posted at the front door of his usual place of abode; neither he nor his wife, nor any white person, who is a member of his family and above the age of sixteen years, being found at his said usual place of abode.'

Declarations in due form were filed in the respective suits; and, the defendant not appearing in either, judgment was rendered against him in the first suit for the sum of $3,535.49, and in the second for the sum of $8,014.34, with interest in each case, as set forth in the record.

Executions were regularly issued, and returns were made of nulla bona; and thereupon the creditors filed their bill of complaint in the county court, in which they set up the said judgments, and alleged that the defendant had no personal assets, and prayed that the lien of their judgments might be enforced by a sale of the real estate of the defendant for the satisfaction of the same; that the defendant might be required to answer the allegations of the bill of complaint; and that a commissioner might be appointed to report the real estate owned by defendant, together with the incumbrances, if any, upon the same; and that the court will enter such decree in the case as the circumstances may require.

Personal service could not be obtained; and, the defendant having failed to enter an appearance or to give bond as required, the court made an order of publication, and directed that a copy of the order be inserted in the 'State Journal' once a week for four successive weeks, and that the same be posted at the front-door of the court-house of the county.

Proof of publication was exhibited, and the person appointed to ascertain what real estate was owned by the defendant made a report; and it appearing that the rents and profits of his real estate would not suffice to pay the plaintiffs' judgments, and others mentioned in the same report, within five years, the court did further order, adjudge, and decree that so much of the same as was requisite for the purpose should be sold at public auction, and prescribed the terms of sale, and appointed a commissioner to carry the decree into effect.

Pursuant to the decree of the court, the commissioner advertised the real estate for sale, as appears by a copy of the advertisement exhibited in the record. Enough appears to show that the sale of the real estate was postponed to a later day than that named in the advertisement, and that the defendant, in the mean time, filed an injunction-bond in the case, in which it is recited that the defendant had obtained from the judge of the eleventh circuit of the State an injunction enjoining and restraining the said creditors and the commissioner, until an order is granted by the county Circuit Court to the contrary, from any proceedings to enforce the payment of the said two judgments. Pending the temporary injunction, the defendant sued out a summons commanding the said judgment creditors to appear at the rules of the said court, on the day therein named, to answer to the bill of complaint filed in the said court by the debtor in the said judgmonts.

Sufficient appears to show that the intent and purpose of the bill of complaint were to obtain a decree enjoining and restraining the said judgment creditors from any proceeding to enforce the payment of the two judgments described in the aforesaid decree of sale; and with that view the judgment debtor alleged that the return to the process in each of those suits was fales and fraudulent; that the process was not posted at the front-door of his usual place of abode as the law directs, and that the respective judgments are illegal, and should be set aside; that the family of the debtor left there six weeks before the Federal forces occupied the place, and that the defendant in those suits left there and joined his family within the Confederate lines six days subsequent to the entry there of the Federal forces, and that he ever after remained with his family within the Confederate lines until the close of the war, and that these facts were well known to the judgment creditors and their counsel.

Service was made, and the judgment creditors appeared as respondents, and filed an answer.

Reference will only be made to a single allegation of the answer, as the others are not material in this investigation. They allege that the return of the process which led to the judgments in each of the two suits 'was and is true in every particular, and was and is in no respect false and fraudulent; and that the process in each case was, in fact, executed in exact conformity with the return.' No answer having been filed by the commissioner appointed to make the sale, the bill of complaint as to him was taken as confessed, and the complainant filed the general replication to the answer of the other respondents. Hearing was had upon the bill, exhibits, and answer, before the judge of the eleventh circuit of the State, pursuant to notice, and on the motion of the respondents to dissolve the temporary injunction; and it appears from the record that the motion of the respondents was overruled. Whereupon the respondents filed a petition praying for the removal of the cause into the next Circuit Court of the United States for the Eastern District of the State; and the record shows that the petition was granted.

Prior to the removal of the cause, the same had been set down for hearing,...

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101 cases
  • Johnson v. Statewide Collections, Inc., 88-285
    • United States
    • Wyoming Supreme Court
    • July 21, 1989
    ...judgment of the county court would be a nullity. Fauntleroy v. Lum, 210 U.S. 230, 28 S.Ct. 641, 52 L.Ed. 1039 (1908); Earle v. McVeigh, 91 U.S. 503, 23 L.Ed. 398 (1875); See Matter of Contempt Order Issued Against Anderson, 765 P.2d 933 (Wyo.1988). We have no equivocation, however, in recog......
  • U.S. v. County of Cook, Ill.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • April 30, 1999
    ...is the only issue thus preserved, and if the first court had jurisdiction then the judgment must be enforced. See Earle v. McVeigh, 91 U.S. 503, 507, 23 L.Ed. 398 (1875); Williams v. General Electric Capital Auto Lease, Inc., 159 F.3d 266 (7th Cir.1998); Metropolitan Life Insurance Co. v. C......
  • Wise v. Herzog
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • July 15, 1940
    ...287 U.S. 45, 68, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527; Simon v. Craft, 182 U.S. 427, 21 S. Ct. 836, 45 L.Ed. 1165; Earle v. McVeigh, 91 U.S. 503, 510, 23 L.Ed. 398; Blackmer v. United States, 284 U.S. 421, 438, 52 S.Ct. 252, 76 L.Ed. 375. See Galpin v. Page, 18 Wall. 350, 369, 21 L. Ed.......
  • Davidson v. Henry L. Doherty & Co.
    • United States
    • Iowa Supreme Court
    • March 8, 1932
    ...Ed. 747, 750, and cases cited.” See, also, Dohany v. Rogers, 281 U. S. 362, 50 S. Ct. 299, 74 L. Ed. 904, 68 A. L. R. 434;Earle v. McVeigh, 91 U. S. 503, 23 L. Ed. 398;McDonald v. Mabee, 243 U. S. 90, 37 S. Ct. 343, 61 L. Ed. 608, L. R. A. 1917F, 458. We have repeatedly recognized this gene......
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1 books & journal articles
  • Allan Erbsen, Impersonal Jurisdiction
    • United States
    • Emory University School of Law Emory Law Journal No. 60-1, 2010
    • Invalid date
    ...used various artifices to serve defendants who had fled behind Confederate lines and were thus unlikely to receive actual notice. See 91 U.S. 503, 506-08 (1875). The Supreme Court reversed the default judgment, observed that the state court had not complied with statutory formalities govern......

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