Harris v. Pullman
| Decision Date | 30 September 1876 |
| Citation | 84 Ill. 20,25 Am.Rep. 416,1876 WL 10422 |
| Parties | HART H. HARRIS et al.v.GEORGE M. PULLMAN et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. SAMUEL M. MOORE, Judge, presiding.
This was a bill in chancery, by John S. Harris and Charles H. Wheeler, who are residents of Wisconsin, and against George M. Pullman, David A. Gage and Franklin Parmelee, who are residents of Illinois, and also James E. Lyon, Charles H. Moore and Henry D. Towne, who are non-residents of Illinois, praying that the defendants be declared to be trustees in possession of certain mines, mining property, etc., in Colorado, for the complainants; that they be required to account for the rents, issues, receipts, sales and profits of such property; that they be required to surrender possession of the property to complainants, and that they be perpetually enjoined from interfering with, entering upon or exercising any control over the property, and from proceeding to collect, through proceedings in the Wisconsin courts, certain judgments obtained by the defendants against the complainants, in the courts of Colorado.
The defendants residing in this State were personally served with process. The other defendants had notice merely by publication, and they were in nowise personally before the court.
The property, about the ownership and possession of which the litigation is chiefly concerned, is described as follows:
“An equitable one-quarter of a mining claim on Gregory Lode, described as claim No. 7 on said lode, south-west from the gulch; and an undivided one-third interest in a tunnel, about two rods below the Manhattan mill, which was purchased from Barber & Leper; also, the Discovery claim; claim No. 1, north-east of the Discovery claim, on the Milwaukee Lode; 150 feet on the Monmouth Lode, being mining claim No. 9; the half of mining claim No. 10; the north-east half of mining claim No. 4, on the Monmouth Lode; also, the ground and water power claim, with all the privileges and appurtenances thereto belonging, next above the claim of Newlin & Co., extending from bank to bank, a distance of 2500 feet up the North Clear creek, together with the steam quartz mill situated on the last mentioned claim, and all the machinery, stock, tools, fixtures and appurtenances belonging to the mill; also, a certain other mill claim near the mouth of Toll road, and extending from bank to bank up the gulch, a distance of 500 feet; also, lot No. 1, east of a house known as the Ferris house, and the dwelling house situated thereon, and a lot east of and adjoining the last mentioned lot, being 40 by 100 feet; all which property is in Enterprise mining district, in the county of Gilpin, and Territory of Colorado.”
Of this property, lode No. 7 was conveyed, by the defendants, to “The Consolidated Gregory Company,” for which it is sought to make them account, at the price received. The defendants, answering, claim that they are the legal owners of this property, by virtue of deeds from the sheriff of Gilpin county, Colorado, made pursuant to sales had on executions issued on judgments in favor of certain of the defendants, and against the complainants, in courts of competent jurisdiction in that county.
Complainants deny the validity of the judgments, sales and deeds, and allege that the defendants became possessed of the property by virtue of a mortgage executed to them by the complainants' agents, Kimball & Reed, whose acts, in this respect, complainants expressly ratify.
There are many other matters set up in the pleadings, and about which evidence was given on the hearing; but they are immaterial to the questions discussed in the opinion.
The court below decreed in favor of the defendants, and that the bill be dismissed.
Messrs. WILLIAMS & THOMPSON, and Mr. THOMAS L. OGDEN, for the appellants.
Mr. JOHN N. JEWETT, for appellees Pullman, Gage and Parmelee.
Having entertained some doubts whether our judgment in the present case, as heretofore announced, was based on correct grounds, we ordered a rehearing. The counsel of the respective parties, availing of the opportunity thus afforded, reargued the questions involved with much elaboration and ability; and profiting by this assistance, we have again considered, with care, the judgment it is proper we should give.
Our conclusion remains as before. It is necessary to consider but a single question, and we shall do little more than restate our views thereon as expressed in our former opinion.
Ordinarily, a court of equity, having personal jurisdiction of the defendant, will, in case of fraud, of trust or of contract, grant relief, although lands not within the jurisdiction of the court shall be affected by the decree; and this is upon the principle that, in equity, the primary decree is in personam and not in rem. Still, in such cases, relief will not be granted unless that sought is of such a nature as the court is capable of administering in the particular case; for “a court of equity has not, necessarily, jurisdiction over a subject of ordinary equity cognizance, simply because the parties are within the former.” 2 Story's Equity Jurisprudence, § 744 a.
Our statute provides for constructive notice, by publication, to defendants in chancery causes, where they are beyond the limits of the State, or, on due inquiry, can not be found; but the decree thereupon authorized can only affect property within the jurisdiction of the court. The person can not be bound, unless it has been reached by the process of the court, and since the decree can not operate extra-territorially, it is impossible that it can bind property thus located. Firebaugh v. Hall, 63 Ill. 81, and Galpin v. Page, 18 Howard, 350, cited by counsel for appellants, and relied on in their original argument, assert no rule to the contrary.
In the first of these cases, title was claimed by virtue of a levy and sale under a certain writ of attachment. The suit was commenced in assumpsit, against two defendants, one of whom, only, was served with process. Judgment was rendered against him, and a scire facias ordered, which was never issued, against the other defendant. The attachment professed to be sued out in aid of the scire facias. It was held, inasmuch as the scire facias was not issued, the attachment was void. All that was there said was said in discussing the validity of the attachment, and there is nothing in the opinion contemplating that a notice, by publication only, conferred jurisdiction over the person, or that a judgment rendered on such notice could operate further than to authorize the sale of the property attached.
In the other case, the land which was the subject of...
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