Paxton v. Daniell

The opinion of the court was delivered by Dunbar, J. In this case the essential question to be considered, and the one on which the case hinges, is the validity of a judgment rendered against a non-resident defendant, by the publication of a summons where no property of the defendant is brought under the control of the court. It is not shown by the record in this case that any attachment had been served upon the property of the defendant or had been issued in the case. In fact, it is admitted by the argument that no property has been brought under the control of the court. Statutes providing the mode for acquiring jurisdiction of a defendant by publication of a summons, being in derogation of the common law, must be strictly followed in any case in order to give the court j urisdiction over the person of the defendant. And we are of the opinion that the law is well settled that such statutes are not effective excepting where the action is for the purpose of affecting the status of the defendant; and that the tribunals of a state have no authority to adjudicate upon the obligations of non-residents where they have no property within its limits; and that a judgment rendered against non-residents, without personal service of process upon them, or their voluntary appearance, where the suit is merely in personam, is [22] void. Pennoyer v. Neff, 95 U. S. 714; Harkness v. Hyde 98 U. S. 476; 3 Estee Pl. 9. The case at bar seems to ns, as far as the record discloses, to fall within this rule. We do not think that the appearance made by the defendant in the court below was such an appearance as would waive any jurisdictional rights, and that it must be held to be a special appearance for the purpose of making a motion that he was entitled under the law to make. It therefore follows that the judgment of the court below must be reversed, and this cause is remanded to the court below for action in accord! anee with this decision. Anders, C. J., and Stiles, Scott and Hoyt, JJ., concur.