Swift v. Meyers

• Citation: 37 F. 37
• Parties: SWIFT v. MEYERS et al.
• Decision Date: 24 December 1888
• Court: U.S. District Court — District of Oregon

37 F. 37

SWIFT v. MEYERS et al.

United States Circuit Court, D. Oregon.

December 24, 1888

Syllabus by the Court

A suit to enforce the lien of a mortgage is not one to recover money or damages only, and therefore the notice inserted in the summons must be according to the direction in subdivision 2 Sec. 53, Comp. 1887.

The judgment of a state court may be collaterally questioned or attacked in a national court sitting in the same state, for a want of jurisdiction over the subject-matter or of notice to the defendant, the same as if it was a judgment of a court of another state.

A suit to enforce the lien of a mortgage by the sale of the property is in the nature of a proceeding in rem, and in case the mortgagor or his successor in interest is a non-resident, or not found, so that he cannot be personally served with process, in the state, the court may decree a sale of the property on such substituted or constructive service of process on the mortgagor as the legislature may provide; but in such case there is no presumption in favor of the jurisdiction of the court, and, unless the record shows a compliance in all essential particulars with the statute authorizing such service, its decree is null and void.

A statute of Oregon (Comp. 1887, Sec. 55) provides that if a defendant in a suit cannot be found, service of the summons may be made by delivering a copy of the same 'to some person of the family, * * * at the dwelling-house or usual place of abode of the defendant. ' In a suit to enforce the lien of a mortgage on property in Linn county, the return of the sheriff showed that the defendant could not be found and that a copy of the summons was delivered to a 'member' of the family, 'at his usual place of abode in said (Linn) county,' on which service the court gave a decree by default for the sale of the property under which the defendants claim. Held, that the service was invalid, and the decree of sale thereon null and void because the return did not show that the substituted service of the summons was made at the defendant's usual place of abode in the state, in whatever county it might be, but only at his usual place of abode in Linn county.

Semble that the record of a court cannot be collaterally impeached or contradicted except by a suit in equity, brought for the purpose of setting aside a judgment, on the ground that in fact the court never acquired jurisdiction to give the same.

W. Scott Beebe, for plaintiff.

Albert H. Tanner and Charles E. Wolverton, for defendants.

DEADY J.

This action is brought by the plaintiff, a citizen of California, against the defendants, citizens of Oregon, to recover 377.77 acres of land situate in Linn county, Or., exceeding in value $6,000.

The case was tried by the court, without the intervention of a jury, upon the amended complaint, answer, and reply thereto, and a stipulation as to the facts.

From these it appears that on and prior to October 16, 1879, Philip Grigsby was the owner of the premises in question, subject to a mortgage thereon, given to the state commissioners for the management of the school fund, to secure the payment of $4,500, with interest, theretofore borrowed by Grigsby from said commissioners; that on said date a suit theretofore brought by said commissioners against Grigsby to enforce the lien of said mortgage was pending in the state circuit court for said county, in which a summons had been issued, directed to said Grigsby, requiring him (to appear and answer the complaint ' therein within the time specified, and notifying him that if he failed so to appear and answer 'the plaintiff will apply to the court for the relief demanded' in the complaint; that said summons was returned by the sheriff of said county with the following certificate of proof of service annexed thereto: 'I hereby certify that I have served the annexed summons in Linn county, Oregon, on the 16th day of October, 1879, on the therein named defendant, Philip Grigsby, he not being found, by leaving a copy thereof, * * * together with a copy of the complaint, * * * with Mary Backus, a member of the family, over the age of 14 years, at his usual place of abode in said county;' that thereafter said circuit court gave a decree in said case by default in favor of the plaintiffs therein, on which the interest of Grigsby in the premises was sold on execution, and the proceeds applied on the demand of the plaintiffs, and in discharge of said lien; that said sale was duly confirmed, and a conveyance of the premises made in pursuance thereof to the purchaser, J. W. Meyers, under whom the defendants claim; and that the plaintiff, on April 26, 1888, received a conveyance from Grigsby of all his interest in the premises.

The stipulation concludes that, if the 'summons' is valid and the 'return' is sufficient to show due service of the same on Grigsby, the defendants are entitled to judgment in the action, but, if not, the plaintiff is entitled to judgment.

It is contended by the plaintiff that the decree of the circuit court of Linn county, under which the defendants claim, is void and of no effect, because the court had no jurisdiction in the premises.

The grounds of this contention are: (1) The summons was invalid, because it did not contain a notice that the plaintiff would, if the defendant failed to answer the complaint, take judgment for a sum specified therein, but only that in such case they would apply to the court for the relief demanded in the complaint; and (2) the return of the sheriff does not show a valid service of the summons, because (a) it appears therefrom that it was 'left' with Mary Backus, and not 'delivered' to her; (b) it does not appear whether Mary Backus was a member of her own family or of the defendant's; and (c) it does not appear that the summons was served at the 'usual place of abode' of the defendant in the state, but only 'in Linn county.'

The statute (Comp. 1887, Sec. 53) provides 'that there shall be inserted in the summons, a notice in substance as follows: (1) In any action for the recovery of money or damages only, that the plaintiff will take judgment for a sum specified therein, if the defendant fail to answer the complaint; (2) in other actions, that if the defendant fail to answer the complaint, the plaintiff will apply to the court for the relief demanded therein.'

By section 55 (Comp. 1887) it is further provided that 'the summons shall be served by delivering a copy thereof, together with a copy of the complaint, * * * as follows:' (Here follow five subdivisions, the first four of which relate to the service on corporations and persons under guardianship.) The fifth one provides: 'In all other cases to the defendant personally, or, if he be not found, to some person of the family, above the age of 14 years, at the dwelling-house or usual place of abode of the defendant.'

These provisions concerning a summons and its service in an action at law, are equally applicable to a summons and its service in a suit in equity, to enforce the lien of a mortgage. Comp. 1887, Sec. 389.

The suit against Grigsby was not, in my judgment, a suit to recover money only; primarily it was brought to ascertain and enforce a lien on the real property in question, and obtain a judicial sale of the same, and the application of the proceeds thereof in payment of the debt the mortgage was given to secure. Comp. 1887, Sec. 414.

It is true that in case a mortgagor has given a personal obligation for the debt, the law authorizes the court to 'decree a recovery of the amount of such debt against' him, as well as to decree a sale of the property to satisfy the same. But the decree in personam for the recovery of the money is not the 'only,' nor even the principal, object of the suit. At least it is merely a conditional decree, and cannot be enforced until the property adjudged to be sold is disposed of; and then only in case the proceeds of such sale are not sufficient to satisfy the decree. Comp. 1887, Sec. 417.

The notice in the summons was properly given under the second subdivision of section 53; and a copy of the complaint having been served at the same time, the defendant was fully informed of the nature of the decree that might be taken against him in case he failed to answer.

The last objection to the validity of the service will be considered first.

It does not appear that a copy of the summons was delivered 'to some person of the family * * * at the dwelling-house or usual place of abode' of the defendant. What does appear is this: A copy of the summons was 'left' with 'a member of the family over the age of 14 years, at his (the defendant's) usual place of abode in said (Linn county.'

A suit to enforce the lien of a mortgage is a local one, and can only be brought in the county where the land lies. Comp. 1887, Sec. 387. But the defendant may be served with the summons in any county of the state in which he may be found. Id. Secs. 52, 54.

There is no presumption that Grigsby was a resident of Linn county because the suit to enforce a lien on real property belonging to him therein was brought there. It could not have been brought elsewhere. For aught that appears he may have resided in any other county in the state. And if 'found' anywhere therein, whether commorant or itinerant, he could have been served by delivering to him personally, a copy of the summons. But if not so 'found,' then he could only be served by the delivery of a copy of the summons 'to a person of the family'-- the family of which he constituted a part, whether as head or member-- at his dwelling-house or usual place of abode.'

It is self-evident that a defendant can have but one unqualified 'usual place of abode' in the state at the same time. If he has...