Skinner v. McDaniel

The opinion of the Court was delivered by Baylies, J. There is no doubt the court below instructed the jury correctly. It has long been established, that the plaintifF, in ejectment must show the defendants in possession of the land [420] demanded, at the commencement of his action : showing that tits' defendants have some sort of claim to the land is not sufficient. But when we examine the record of proceedings in the action of ejectment,.and the judgement rendered on default, we cannot discover the necessity of a writ of revieiv being brought by Skinner and the two Hurds to reverse that judgement. It appears by the writ of ejectment, that Skinner and the two Hurds resided in Charleston, in Massachusetts, and were citizens of that state ; and' they had no property here, and no service of the writ was made upon them. But their names were entered upon the docket-of the court, as defendants in the action, ft is a question,-whether-the court, having no jurisdiction of the action, as it respected SkinJ ner and Hurds, for want of service of the writ upon them, could acquire jurisdiction by making an order of notice to them to be published in the news-paper, as was done in this case ? The statute, (eh. 7, s. 55,) says, “ That if the party against whom any “ suit shall be brought, were absent from the state, at the time; u of commencing such suit, and shall not return within the same- “ before the time of trial, the court, in which such suit is brought,. “ shall continue the action to the next term of said court, (unless “ the plaintiff shall make it appear to the satisfaction of the court, “ that the defendant had notice of the service of such process, a “ sufficient time before the return thereof to have appeared at said 15 court, and have had a trial.) And it is hereby made the duty “ of the plaintiff to cause personal notice of such suit, and contin- “ nance, to be given to the defendant, twenty days previous to “ the next term of said court. And unless it shall appear to the “ court, that the defendant has been notified, the court shall fur- “ ther continue said action, and order further notice to be given, “ by directing a publication thereof to be made in some public “ news-paper, at their discretion.” The writ must be served on the absent defendant in someone of the ways pointed out by statute. If the writ be not served, the court can have no jurisdiction of the action — not even to continue it, for the plaintiff to give the defendant notice. But if the writ be served, the court may continue the action from term to term, and order notice to be published in a news-paper. So a citizen of another state, whose property is attached in this state, may be notified of the pendency of the action agreeably to the above act. But if neither the person, nor property of a citizen of another-state, can be found in this state, whereon to serve process, the courts of this state can have no jurisdiction over him. Neither [421] (be persons, nor property of Skinner•, and the two Hurds, were found, whereon to serve the writ of ejectment, and no service was rnade'on them. The court then could have no jurisdiction of the action, as it respected' them ; nor could the court acquire jurisdiction by ordering notice to be published in a news-paper; because the writ not being served, was not a case for notice within the above statute. If after such notice, the court proceeded and rendered judgement against Skinner and the two Hurds, on their default, such judgement must be utterly void for want of jurisdiction. It could not be necessary for Skinner and Hurds to bring a writ of review to avoid this void judgement; but as they have brought such writ, and succeeded in it, the Sawyer & Fleiehér, for reviewee. Paddock & Toting, for reviewers. Judgement of the county court is affirmed with additional costs.