Winner v. Fitzgerald

By the Court, Downer, J. This is an appeal from the order of the circuit court refusing to set aside the judgment in favor of the respondents. The action was commenced by publication of a summons, or intended to be, pursuant to the provisions of sec. 10, chap. 124, R. S. Is the statute valid ? And if so, is the affidavit on which the order of publication is based sufficient to warrant the order and give the circuit court jurisdiction ? Our constitution provides that no person can be deprived of his property without due process of law. This means that every person shall have the privilege of being heard — of a trial before judgment is rendered against him- by virtue of which his property may be taken. And in cases like the one before us, an action must be commenced, of which the defendant must have actual or constructive notice. Actions are proceedings 396 either in rem or in personam, or both. It is plain that if this suit, or the judgment therein, is of any validity whatever, it is as a proceeding in rem. Is it such a proceeding ? I have been unable to satisfy myself that it is. To be a proceeding in rem,the court or its officers should have actual or constructive possession of the property proceeded against, at or before the rendition of the judgment; or the plaintiff should, before such rendition, have a lien upon it or some interest in it. Ordinarily in actions in rem there is both possession and lien before judgment. The property is seized by virtue of a writ of attachment. This is not, however, the only mode of creating or acquiring a lien. Liens are given in many cases by the common law and by statute, which courts enforce against the property of non-resident defendants. The legislature might have provided that the commencement and pendency of the action should create a lien on the real estate, and perhaps on the personal property of the defendant within the jurisdiction of the court. The statute, if valid, clearly authorizes an action and judgment against a non-resident defendant, who neither appears nor is served with process except by publication of the summons, and whose property is not, nor is any of it, in the actual or constructive possession of the court, nor has the plaintiff any lien thereon, or any right, title or interest in or to it. I am inclined to the opinion that such a suit is not a proceeding in rem, and that the statute authorizing it is void; or rather that proceedings under it are of no validity unless a writ of attachment follow the summons, and the defendant’s property is actually seized before the judgment is rendered. But this is not the opinion of the court. The majority of the court hold, as in Jarvis v. Barrett, 14 Wis., 595, that the statute is valid, and that the judgment rendered in actions under it is good as against the property specified or particularly described in the affidavit. They also hold that in the affidavit the property of the defendant within this state must be so described that the officer signing the order of publication may be able to see that 397 it is such property as is liable to be seized on attachment or execution, and unless it is so described the proceeding is void. It not being so described in this case, the order of the court below is reversed, with costs, with directions to vacate the judgment.