Long v. Home Ins. Co. Of New Orleans

• Decision Date: 10 April 1894
• Citation: 114 N.C. 465,19 S.E. 347
• Parties: LONG v. HOME INS. CO. OF NEW ORLEANS.
• Court: North Carolina Supreme Court

19 S.E. 347

114 N.C. 465

LONG

v.HOME INS. CO. OF NEW ORLEANS.

Supreme Court of North Carolina.

April 10, 1894.

Summons—Service outside State.

Under Act 1891, c. 120, authorizing service of summons on a nonresident outside the state, "in lieu of publication in a newspaper, " such service will give jurisdiction only where publication would, and will not in an action for debt, where there is no attachment.

Appeal from superior court, Forsyth county; Robert W. Winston, Judge.

Action by S. L. Long against the Home Insurance Company of New Orleans. Action dismissed. Plaintiff appeals. Affirmed.

J. S. Grogan, for appellant

Glenn & Manly, for appellee.

CLARK, J. The finding of the court below that the appearance of the defendant at August term was a special appearance is not reviewable. Act 1891, c. 120, authorizing service of summons and other process upon a nonresident by an officer of the county and state where he resides, is, as the act expresses it, only "in lieu of publication In a newspaper." It can only be done in those cases in which publication could be made, and has only the effect publication would have, except It may be that, when the actual notice Is brought home by such service to a nonresident, he has not the right allowed the defendant, when publication is made by Code, § 220, to defend after judgment But as to this we need not decide now. "Substituted service by publication, or in any other authorized form, may be sufficient to inform parties of the object of proceedings taken, where property is once brought under the control of the court by seizure, or some equivalent act * * * Such service may also be sufficient in cases where the object of the action is to reach and dispose of property in the state, or of some interest therein, by enforcing a contract or lien respecting the same, or to partition it among different owners, or, when the public Is a party, to condemn and appropriate it for a public purpose. In other words, such service may answer in all actions which are substantially proceedings in rem. * * * Process from the tribunals of one state cannot run into another state, and summon parties there domiciled to leave Its territory, and respond to proceedings against them." Pennoyer v. Neff, 95 U. S. 714, 727; Wilson v. Seligman, 144 U. S. 41, 44, 12 Sup. Ct. 541. "There is a large class of cases which are not strictly actions in rem, but are frequently spoken of as actions quasi in rem, * * * in which property of nonresidents Is attached and held for the discharge of debts due by them to citizens of the state, and actions for the enforcement of mortgages and other liens." Freeman v. Alderson, 119 U. S. 185, 7 Sup. Ct 165; Hornthal v. Burwell, 109 N. C. 10, 13 S. E. 721. Where the proceeding Is for the enforcement of mortgages or other liens, or the condemnation of a right of way or other easement, or the partition of realty and the like, the jurisdiction as to nonresidents only authorizes a judgment acting upon the property. Where the enforcement of a debt or other personal liability is sought by subjecting property of the nonresident, the jurisdiction is based upon the seizure of the property, and only extends to the property attached. In neither case can any personal judgment be rendered against the defendant, not even for the costs, nor affect Ing other property of his, even within the state. Winfree v. Bagley, 102 N. C. 515, 9 S. E. 198. The act (1891, c. 120) allowing service of process of this state upon a...