Vick v. . Flournoy

Hoke, J., after stating tbe case: Tbe principal question presented in tbis appeal, on tbe right of plaintiff to proceed' as a matter of jurisdiction in tbe court, has been resolved against tbe defendants’ position in several decisions of tbis Court, notably tbe case of Bernhardt v. Brown, 118 N. C., 701 et seq. In that well-considered opinion tbe present Chief Justice points out tbe different methods by wbicb a court may acquire jurisdiction of a cause and of parties litigant, and, among other rulings, bolds as follows: “1. There are three modes for tbe ‘due service of process’ — (a) by actual service, or, in lieu thereof, acceptance or waiver by appearance; (b) by publication, in cases where it is authorized by law, in proceedings in rem, in wbicb case tbe court already has jurisdiction of tbe res, as to enforce some lien on or a partition of property in its control; (c) by publication of tbe summons, in cases authorized by law, in proceedings quasi in rem, in wbicb cases tbe court acquires jurisdiction by attaching property of *213 a nonresident, absconding debtor, etc. A judgment obtained under process served by tbe two last-named methods has no personal efficiency, but acts only on the property. 2. A proceeding to enforce a mechanic’s lien being in rem, the service of summons by publication is authorized by section 218 (4) of The Oode, if defendant cannot after due diligence be found in the State, whether he is a nonresident or a resident. 3. In an action to enforce a mechanic’s lien and in all other proceedings in rem it is not necessary, as in proceedings quasi in rem, to acquire jurisdiction by actual seizure or attachment of the property, the mere bringing of the suit in which the claim is sought to be enforced being equivalent to seizure.” And, in Graham v. O’Bryan, 120 N. C., 463, the same Judge, for the Court, said: “A service by publication on a nonresident, in an action affecting property, is valid without attachment.” And again, in Long v. Insurance Co., 114 N. C., 465, and in other cases, it has been held that, while personal service of process in another State on a nonresident defendant is in lieu of service by publication and only available in cases where such service would be sufficient, yet, when the statute so provides and its terms are complied with, both methods are valid as to actions substantially in rem or quasi in rem, and where the relief sought is restricted to an application of the property seized by process in the cause or to a judgment affecting the title to property or some interest therein or lien thereon which had its situs within the limits of the court’s jurisdiction. The cases are in accord with the decisions of the Supreme Court of the United States ón the same subject. Penoyer v. Neff, 95 U. S., 715; Arndt v. Griggs, 134 U. S., 316. In this last case, being an action to determine the interest of certain claimants to real estate situated within the State of Nebraska, and to quiet the title thereto, Mr. Justice Brewer, delivering the opinion of the Court, quotes with approval from the case of Beebe v. Doster, 36 Kan., 666, 675, 677 et seq., as *214 follows: “Mortgage liens, mechanic’s liens, materialmen’s liens and other liens are foreclosed against nonresident defendants upon service by publication only. Lands of nonresident defendants are attached and sold to pay their debts; and, indeed, almost any kind of action may be instituted and maintained against nonresidents to the extent of any interest in property they may have in Kansas,-and the jurisdiction to hear and determine in this kind of cases may be obtained wholly and entirely by publication. Gillespie v. Thomas, 23 Kan., 138; Walkenhorst v. Lewis, 24 Kan., 420; Rowe v. Palmer, 29 Kan., 337; Venable v. Durch, 37 Kan., 515, 519. All the States,' by proper statutes, authorize actions against nonresidents and service of summons therein by publication only, or service in some other form no better; and, in the nature of things, such must be done in every jurisdiction, in order that full and complete justice may be done where some of the parties áre nonresidents.” And again, quoting from Boswell’s Lessee v. Otis, 9 How., 336, 348: “Turning now to the decisions of this Court: In Boswell’s Lessee v. Otis, 9 How., 336, 348, was presented a case of a bill for a specific performance and an accounting, and in which was a decree for specific performance and accounting, and an adjudication that the amount due on such accounting should operate as a judgment at law. Service was had by publication, the defendants being nonresidents. The validity of a sale under such judgment was in question. The Court held that portion of the decree and the sale made under it void, but, with reference to jurisdiction in a case for specific performance alone, made these observations: ‘Jurisdiction is acquired in one of two modes — first, as against the person of the defendant, by the service of process, or, secondly, by a procedure against the property of the defendant within the jurisdiction of the court. In the latter case the defendant is not personálly bound by the judgment beyond the property in question. And it is immaterial whether the proceeding *215 against the property be by an attachment or bill in chancery. It must be substantially a proceeding in rem. A bill for the specific execution of a contract to convey real estate is not strictly a proceeding in rem in ordinary cases; but where such a procedure is authorized by statute on publication, without personal service or procéss, it is substantially of that character.’ And on the question before them the Court held: ‘(1) A State may provide by statute that the title to real estate within its limits shall he settled and determined by a suit in which the defendant, being a nonresident, is brought into court by publication. (2) The well-settled rules that an action to quiet title is a suit in equity, that equity acts upon the person, and that the person is not brought into court by service by publication alone, do not apply when a State has provided by statute for the adjudication of titles to real estate within its limits as^ against nonresidents, who are brought into court only by publication.’ ” This is an action to establish plaintiff’s title to a tract of land4 situated within the jurisdiction of the court, and to relieve the same from any and all liens that the defendants may hold on same. The terms of the'statute providing for personal service beyond the State have been duly complied with. -Revisal, sec. 448. And a correct application of the principles announced in the foregoing decisions clearly determines that, if the facts ,are established as alleged, the court has jurisdiction to afford the relief demanded. There is no doubt of the correctness of the position urged upon us by the defendants’ counsel, that a valid judgment strictly in 'per-sonam cannot be had unless there has been a voluntary appearance by defendant or there has been service of process upon him within the jurisdiction of the court, and that personal service of process beyond the jurisdiction does not affect the principle or render such a judgment valid. But the relief sought here is not strictly in personam, and, while it may not be with exactness a proceeding in rem, the decisions all treat *216 it as substantially in rem, and the question of the court’s jurisdiction comes deafly within the principles we hold to be controlling, and the facts bring the ease within the express terms of our statute providing for service by publication. Revisal, sec. 442. Such service may be had whenever defendant is a proper party relating to real property, and (subsection 3) “where he is not a resident of this State, but has property therein and the court has jurisdiction of the subject of the action”; (subsection 4) “where the subject of the action is real or personal property in this State and the defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partly in excluding the defendant from any lien or interest therein.” Objection is further made to the summons served for that same is not under seal of the court. We are inclined to the opinion that, under section 431, Revisal, a seal is required— certainly it is always desirable — when a summons is sent to a distance. Its presence may serve to assure the officer of another State that the proceedings are in good faith and under official sanction; but when it appears that the defendants have been actually notified, as in this case, not only of the time and place when they are required to appear, but also fully informed of the nature and purpose of the action, the objection that there is no seal to the summons is not of the substance. If the officer has acted without it, the absence of a seal is only an irregularity, which may be cured now by having the seal affixed, and the same may be said as to the form of the summons. It is sufficient to notify the parties, and is a substantial compliance with the statute, accompanied as it is by a sworn statement of the nature of the action. The power of amendment to the extent indicated has been upheld by express decision. Henderson v. Graham, 84 N. C., 496; Clark v. Hellen, 23 N. C., 421. We hold that the court had acquired jurisdiction and there was error in dismissing the action. Error.