Raher v. Raher

McClain, J.

The special proceeding in which this plaintiff was adjudged to be of unsound mind and Mullin was appointed guardian was instituted in the district court of Iowa County, and personal service was made upon this plaintiff while he was in fact within the limits of the state' of South Dakota. The petition in such proceeding did not allege the place of residence of the defendant therein, but it is now stipulated that his legal residence was in Iowa County. Adopting a different order of discussion from that followed in appellant’s brief, we shall consider the three propositions relied upon for appellant to show that the judgment in the guardianship proceeding was void for want of jurisdiction, and should now be set aside on that ground. These are, first, that John Raher was not an inhabitant of Iowa County where the special proceeding was instituted, and therefore the court had no jurisdiction to adjudicate the question of his mental capacity and appoint a guardian for him; second, that the statutes of the state do not authorize a personal judgment against a defendant personally served with notice and not appearing in the action; and, third, that if such *513 service is authorized as a basis for personal judgment, the statute is in this respect unconstitutional, as authorizing the defendant in such proceeding thus served to be deprived of liberty and property without due process of law.

1. Insane persons: guardianship: pleadings: jurisdiction: judgments. I. The petition in the proceeding for guardianship did not allege that John Baher was an inhabitant of Iowa County, and it is insisted for appellant that such fact was essential to the jurisdiction of the court in j suc^ proceeding under Code, section 3219, which provides that “when a petition verified by affidavit is presented to the district court that any inhabitant of the county is” person of unsound mind and the allegations of the petition are satisfactorily proved, the court may appoint a guardian for the property of such person. We do not understand from the language quoted that an allegation in the petition that the defendant is an inhabitant of the county is made essential, but, on the other hand, we reach the' conclusion that the fact of residence is the essential thing in this respect. ~ When the petition alleges with reference to a person named that he is of unsound mind, etc., then, as we understand the language of the statute, the court (with the assistance of a jury) is authorized to determine whether the defendant is an inhabitant of the county, and a judgment finding mental incapacity and appointing a guardian presumes a finding that defendant was such inhabitant. But even if this were not so, the judgment in the proceeding against John Baher expressly recited a finding that the court had “jurisdiction of the defendant and the premises,” thus indicating a determination of the court • on the evidence not only that such defendant was served with - notice, but also that the circumstances necessary to justify the court in proceeding were shown to exist, one of these necessary circumstances being, of course, that' defendant was an inhabitant of the county. In the face of this express finding, we would not be justified in holding that a failure to al *514 lege the fact in this respect defeated the jurisdiction of the court. In' Guthrie v. Guthrie, 84 Iowa, 372, it was held that in view of the provision now found in Code, section 3220, that all the rules of ordinary actions shall govern in this proceeding so far as applicable) the verification-of the petition referred to in the language above quoted was not a jurisdictional matter; and we therefore think that the other averment contemplated by such language, that the defendant is an inhabitant of the county, does not purport to state an essential averment, failure to insert which would deprive the court of justification, but discloses only a fact which must be established in order to justify the court in granting the relief prayed. If the jurisdiction of the court in this respect is to be determined with reference to the facts and not with reference merely to the averment, then it sufficiently appears not merely by presumption, but by express recital, that such fact existed, and there is nothing in this record to indicate the nonexistence of the fact thus recited, for John Raher may well have been an inhabitant of the county, although temporarily outside of the state.

2. Same: service of notice. II. A proceeding to secure the appointment of a guardian for one who is of unsound mind is in personam, and personal service, as distinct from service by publication, is essential to give the court jurisdiction. Brown v. Lambe, 119 Iowa, 404. This proposition is conceded'by counsel for appellee, and it is further conceded that there was no appearance by or in behalf of John Raher in the guardianship proceeding, and that if the court had any jurisdiction to declare him of unsound mind and appoint a guardian for his property, such jurisdiction was acquired by a notice personally served upon him in the state of South Dakota. It being stipulated that he had a legal residence in Iowa County, we have presented a question which, in so far as we can discover, is absolutely without precedent in this *515 or any other state of this Union. The first question must be whether such service is authorized by our statute, for, if unauthorized, the court acquired no jurisdiction.

3. Personal JUDGMENTS l service of notice outside of state: statutes. The statutory provisions as to the commencement of ordinary actions are as follows: An action is commenced in a court of record by serving the defendant with an original notice (Code, section 3514) which, so far as personal service is concerned, is to be made by reading the notice to the defendant or offering to do so, etc., and in either case by delivering him personally a copy, or offering to do so (Code, section 3518). It is then provided that if service is made within the state, the return may be proven by the signature of the sheriff or his deputy, of which the court shall take judicial notice, but if made without the state, or by one not such officer within the state, the return must be proven by the affidavit of the person making the same. Code, section 3524. Service by publication is then provided for in various classes of cases, all of which may be properly described as proceedings in rem, unless it be the case of an action “where the defendant being a resident of the state has departed therefrom or from the county of his residence with intent to delay or defraud his creditors, or to avoid the service of a notice, or kept himself concealed therein with like intent.” Code, section 3534. Following other provisions as to service by publication, it is declared that “actual personal service of notice within or without the state supersedes the necessity of publication.” Code, section 35 37.

The sections above referred to are all found in the chapter of the Code relating to the “manner of commencing actions,” but in the chapter relating to “trial and judgment” is found the following provision: “No personal judgment shall be rendered against a defendant served by publication only who has not made an appearance; but a personal judgment may be rendered against a defendant, *516 whether he appears or not, who has been served in any mode provided -in this Code other than by publication, whether served within or without the state, if such defendant is a resident of the state.” Code, section 3800. We aré inclined to think that if it was competent for the Legislature to provide for personal judgment on actual personal service of notice without the state, then it was the intention to authorize a personal judgment against a resident of the state actually served with notice outside the state, for the section last cited evidently has reference to all the methods of service of notice provided for in the chapter relating to the “commencing of actions,” and excludes only those by publication. Actual service outside the state is not declared to be a form of service by publication, but a substitute therefor. In view of the well-recognized rule that personal judgment can not be rendered on service by publication or upon personal service made upon nonresidents outside of the state, it must have been the legislative thought that it was competent to impose upon residents of the state, though for the time being outside ©f its territorial limits, the duty upon being personally served with notice to return to make defense in the action in which such service is made, or to make such defense through counsel appearing for the purpose. See note to section 3164, Eevision of 1860, where this provision first appears. This conception of a possibility of rendering, personal judgment on service had otherwise than within the state is suggested .also - by the portion of Code, section 3534, above quoted, which seems to authorize personal judgment on service by publication in an action against a resident who had departed from the state with intent to delay or defraud his creditors or to avoid service of notice.

In Bates v. Chicago & N. W. R. Co., 19 Iowa, 260, it is said with reference to the provision of section 3164 of the Eevision of 1860 that “this section does not extend *517 the mode of service, nor add to the cases in which service may be made, either by publication or by service without the state. But it is only when service has been made in a 'mode in this Code provided’ that such personal judgment may be rendered; and it is nowhere provided that in personal actions, wherein no provisional remedy is sought, service can be made without the state.” But it clearly appears from the opinion itself that the question which the ' court was considering was whether jurisdiction could be acquired in an ordinary personal action by service of notice on a nonresident out of the state, and whatever is said in the opinion applicable to the sufficiency of such notice upon a resident of the state is evidently pure dictum. As to the language used by the Legislature, there is very little opportunity for construction, and we would not feel justified in holding that such service as was had in the guardianship proceeding is not authorized by the statute, unless it might be for the reason that such construction would render the statute unconstitutional.

4. Same: constitutional law: due proceess. III. We are brought, then, face to face with the question (and it is immaterial whether it be discussed for the purpose of throwing light on the interpretation of the sta;tllte or for the purpose of determining its constitutionality) whether a state may authorize service of notice of actions on residents of the state outside of its territorial limits, and may provide for the rendition of personal judgment on such service.. Singularly enough we find no direct authority upon this question. It was evidently the view entertained by the code commissioners in drafting the statutory provisions now undér consideration for personal judgment or service without the state, which was first embodied in the Civil Code ena'cted in 'I860 as Part III of the Revision of that year (section 3164), that a state may as to residents authorize a personal judgment on a merely constructive service, which would confessedly not *518 be valid as to a nonresident defendant. In the printed report which accompanied this Civil Code the commissioner explains that a personal judgment thus rendered on service outside of the state would not be recognized in a sister state as a judgment entitled to full faith and credit under the provisions of the federal Constitution, but he recommends it as having an advantage over a mere judgment in rem, which might have been had by publication only in this state (see page 329) : “The judgment in rem is measured by the property in court, which may be quite insufficient to discharge the claim, and if the defendant brings more into the jurisdiction the next year, the plaintiff has to repeat his process by another suit . ' . . before he makes his debt; while by this plan, having got a personal notice anywhere, he has a personal judgment, good here at least, and which may be extended over any property of the defendant then or afterwards within the state.”

It is to be noted in passing that the provision above referred to in the Revision of 1860 was applicable alike to residents and nonresidents, for the concluding clause of the section as it now stands, limiting its application to residents, was added in _the present Code (section 3800) with this explanation by the commissioners: “The added clause makes clear what is already probably the law; personal service on a nonresident ought not to. have any effect on his rights different from that resulting from publication.” See Code Commissioners’ Report, 1896, page 104. It is therefore quite apparent that what the Legislature in adopting the Civil Code of 1860 attempted to do ivas to authorize some kind of a judgment alike against residents and nonresidents on personal service out of the state, without the preliminary seizure of any property which would give the court jurisdiction in rem, and the question we have to determine is whether such a judgment is of any validity within the state.

*519 It may be conceded that expressions of opinion are found in decided cases and in text-books justifying the view evidently entertained by the Legislature as above indicated. -This view is contrary to the general proposition that the laws of a state, especially a state of this Union, are territorial rather than personal in their force and application. Romano v. Capital City Brick & Pipe Co., 125 Iowa, 591. And it ignores the provision of our own Constitution and of the fourteenth amendment of the federal Constitution, that no person shall be deprived of his property without the process of law.

After examining all the cases which we have been able to find bearing directly or remotely on the question, we reach the conclusion that no court of last resort in any of the states of the Union has upheld such a judgment, as against an attack based on the want of authority of the state to authorize such a judgment or the want of authority of the court to render it. Thus in Henderson v. Staniford, 105 Mass. 504 (7 Am. Rep. 551), in which defendant, sued in Massachusetts, defended on the ground that a judgment had previously been rendered against him for the same cause of action in California, it was said that although defendant was not in California when the action was commenced against him there, or at any time during its pendency, and no notice or service of process was ever made upon him personally, and although he did not appear by counsel or otherwise or assent to the judgment which was rendered on default, yet, as he had been a citizen of California where the contract was made, and that continued to be his legal domicile when the judgment was rendered, “he was, therefore, upon principles of international law, subject to the laws, and jurisdiction of the courts of that state,” (Citing Story, Conflict of Laws, sections 546 and 548, and Massachusetts cases). But the decision is grounded on the view, not that the judgment was valid, but that, as plaintiff had taken a judg *520 meat, even though subject to being, avoided in a proper proceeding, he could avoid it only by plea, and upon such plea the burden was upon him to show its invalidity. The ground of the decision is thus aptly stated: “In the opinion of the- court, a plaintiff who has voluntarily converted his demand into the form of a judgment, valid where it is rendered, so long 'as the defendant has not attempted to avoid the judgment in any mode, can not himself treat it as of no effect and sue upon the original demand. If the judgment is voidable for want of service upon the defendant or notice to him, he may waive that. He does waive it by pleading the former judgment in bar of the present action.” While this expression of view assumes that the judgment was valid «where rendered the case is not predicated on that ground, but on the thought that if the defendánt sets up such judgment, whether valid or not, in bar of a suit in another jurisdiction on the same cause of action, “he affirms the validity of that judgment against himself and is, eo instanti, estopped to impeach it thereafterward.” And the court suggests that the inconvenience of putting the plaintiff in a position of being defeated when he pleads his cause of action by the plea of a former judgment and, if he sues on the judgment, by the plea that 'it was not rendered on valid service, might be obviated by joining a count upon the judgment with-one upon the original demand, or by asking to amend after the judgment is pleaded, so as to rely upon such judgment. As this case is more in point in its facts than any other to be found on the subject, it has seemed wise to set out the exact reasoning of the court, for the purpose of showing that the. court did not decide as an original proposition that the California judgment was valid. The Massachusetts cases relied Upon by the court are cases in which the general proposition is stated, that personal judgments of courts are not binding upon defendants “not owing them allegiance or found within their *521 limits;” this expression being found in the dissenting opinion in Mills v. Duryee, 7 Cranch, 481, 486 (3 L. Ed. 411).

There are cases in which a defendant not served within the jurisdiction of the court is held bound by the decision ; as, for instance, it is said that one ■ who is bail for another is bound by the judgment, although not himself subject to the court’s jurisdiction (McRae v. Mattoon, 13 Pick. 53), and that one of two joint debtors,. although not within the court’s jurisdiction, is bound by a judgment against his codebtor. Harker v. Brink, 24 N. J. Law, 333. But in these cases nothing is said about the power of a court to take jurisdiction of a defendant who is not served with personal notice. in the state. And it is doubtful whether the propositions announced in these cases are sound, if given effect according to the general language used. See, for instance, Holt v. Alloway, 2 Blackf. (Ind.) 108, where a Kentucky judgment against a person resident in that state, who was adjudged liable as bail without personal notice, was held not absolutely void, but only prima facie valid, and not-conclusive. In Bowler v. Houston, 30 Grat. (Va.) 266 (32 Am. Rep. 673), it was said that a judgment rendered in another state against all the former members of a dissolved partnership without personal service on some of them could not be enforced in that state as a personal judgment against those not served, although by the law of the state where rendered it was enforceable against their joint property. And in Phelps v. Brewer, 9 Cush. (Mass.) 390 (57 Am. Dec. 56), it was said that a judgment against a partnership could not be enforced outside of the jurisdiction as a personal judgment against one of the partners not served with'process.

In Bimeler v. Dawson, 4 Scam. (Ill.) 536 (39 Am. Dec. 430), it is said that it is competent for a state to declare what manner of process shall be sufficient to. bring its citizens into court, although its regulations can *522 not operate extraterritorially. But the point decided was that, as the record of the judgment sued upon in Illinois showed that there was service of process in Ohio where the judgment was rendered, the Illinois court would properly entertain a presumption that defendant was a citizen of Ohio and that the court of that state had jurisdiction. There was nothing on the record or in the evidence to justify a finding that the defendant was not properly served in Ohio. The record did show service by. leaving a copy of the summons at defendant’s place of residence and, in the absence of any showing that he was ■ a nonresident, this would, of course, be 'presumptively sufficient. Indeed, there are several cases in which language is used at first blush justifying the assumption that the court was sustaining a personal judgment on merely constructive service, but it will be found that what is referred to as constructive service is service upon a resident by leaving a copy with a member of his family at his last known place of residence, a form of service which is universally sustained not as constituting constructive but actual- — that is substituted — service. Sturgis v. Fay, 16 Ind. 429 (79 Am. Dec. 440). In the following cases language indicating that a personal judgment may be rendered against a resident without actual service is to be explained as meaning simply that substituted service, by leaving a copy with a member of his family at his last known place of abode, is sufficient. Biesenthall v. Williams, 1 Duv. (Ky.) 329 (85 Am. Dec. 629); Morrison v. Underwood, 5 Cush. (Mass.) 52; Buford v. Kirkpatrick, 13 Ark. 33; Hamill v. Talbott, 72 Mo. App. 22; Harryman v. Roberts, 52 Md. 64; Huntley v. Baker, 33 Hun, (N. Y.) 578; Cassidy v. Leitch, 2 Abb. N. C. (N. Y.) 315. It is evident that these cases have no bearing on the question now under consideration and that whatever is said therein with reference to the validity of a personal judgment without actual service has reference only to the distinction between *523 actual and substituted service, a distinction which is of no consequence for present purposes, for, of course, it must be conceded that as to the method of making actual service, so far as the effect is to give information to the defendant within the jurisdiction of the pendency of the proceeding against him, the statutes of the state must control. On the other hand, it is, of course, true that service by leaving a copy at the last kn'own place of residence is of no validity to give the court jurisdiction over one who is in fact a nonresident. Amsbaugh v. Exchange Bank, 33 Kan. 100 (5 Pac. 384).

Another class of casés may be referred to in which it has been said, in a general way, that a defendant not within the state may be brought within the jurisdiction of its courts. These are cases where the statute authorizes service upon a resident agent of a nonresident corporation' which the corporation, as a condition of doing business within the state, is required to appoint for that purpose. Gillespie v. Commercial Mut. Marine Ins. Co., 12 Gray (Mass.) 201 (71 Am. Dec. 743). And, see, Pennoyer v. Neff, 95 U. S. 714, 735 (24 L. Ed. 565), where the reason for this rule is clearly stated. Likewise, personal service within the state on the president of a foreign corporation has been held good as against the corporation (Mexican Railroad v. Pinkney, 149 U. S. 194, 13 Sup. Ct. 859, 37 L. Ed. 699), and special appearance to object to a service made outside the state may by statute confer jurisdiction. York v. Texas, 137 U. S. 15 (11 Sup. Ct. 9, 31 L. Ed. 604).

Some English cases seem' to recognize the validity of unusual forms of service on absent defendants who are citizens of the state which authorize such service; but they are not in point here, for they involve acts done within and not without the state. Douglass v. Forrest, 4 Bing. 686; Becquet v. McCarthy, 2 Barn. & Adol. 941. The point actually decided in Schibsby v. Westenholz, L. R. 6 *524 Q. B. 155, was that a personal judgment against a nonresident could not he sustained. In Chopin v. Adamson, L. R., 9 Exch. 345, a French judgment against a nonresident was sustained on the ground that it enforced a liability assumed by defendant as stockholder in a French corporation; the reasoning of the court being that, by becoming a stockholder in such corporation, he expressly or impliedly contracted that the courts of France should have jurisdiction to enforce whatever liábility might attach to him as such stockholder. The principle thus recognized seems to be analogous to that in accordance with which in Pennsylvania a power of attorney to confess judgment may be exercised so as to confer jurisdiction, although when suit is brought the debtor is a nonresident. See Grover Mach. Co. v. Radcliffe, 137 U S. 287 (11 Sup. Ct. 92, 34 L. Ed. 670). In none of these cases is any form of service outside the state held sufficient to sustain a personal action.

It must he conceded, however, that we have found no case in which it has been specifically held under pertinent facts that a personal judgment against a resident, who is actually served with notice outside of the territorial limits of the state is void. But in many cases, and in some of the texts, are to be found unqualified statements that the laws of the state have, no extraterritorial force, and that process served outside of the state will not give the court jurisdiction. See, in general, Weil v. Lowenthal, 10 Iowa, 575; Hakes v. Shupe, 27 Iowa, 465; Lutz v. Kelly, 47 Iowa, 307; Bank of Horton v. Knox, 133 Iowa, 443; Harkness v. Hyde, 98 U. S. 476 (25 L. Ed. 237). Ewer v. Coffin, 1 Cush. (Mass.) 23 (48 Am. Dec. 587); Hunt v. Searcy, 167 Mo. 158 (67 S. W. 206); Cross v. Armstrong, 44 Ohio St. 613 (10 N. E. 160) ; Steel v. Smith, 7 Watts & S. (Pa.) 447; Reber v. Wright, 68 Pa. 471; McEwan v. Zimmer, 38 Mich. 765 (31 Am. Rep. 332) ; Irby v. Wilson, 21 N. C. 568; Bernhardt v. Brown, 118 *525 N. C. 700 (24 S. E. 527, 36 L. R. A. 402); Amsbaugh v. Exchange Bank, 33 Kan. 100 (5 Pac. 384); Zepp v. Hager, 70 Ill. 223; Holmes v. Holmes, 4 Lans. (N. Y.) 388; Bischoff v. Wethered, 9 Wall. 812 (19 L. Ed. 829) ; Cooper v. Reynolds, 10 Wall. 308 (19 L. Ed. 931); Thompson v. Whitman, 18 Wall. 457 (21 L. Ed. 897) ; D’Arcy v. Ketchum, 11 How. 165 (13 L. Ed. 648); Story, Conflict of Laws (7th Ed.) section 539; Cooley, Constitutional Limitations (7th Ed.) 579-584; Minor, Conflict of Laws, section 485; Kinne, Pleading and Practice, section 171.

5. Commencement of actions: notice. So far as the opinions in these cases are predicated upon lack of power on the part of the state to give its laws extraterritorial effect by authorizing service of process outside of the state, they are applicable to service abroad upon a citizen, as well as upon a nonresident; for although the notice contemplated by our statutes for the commencement of an action is not technically process of a court (Nichols v. Burlington, etc., Plank Road Co., 4 G. Greene, 42, and Davenport v. Bird, 34 Iowa, 524), yet it serves the same purpose and derives whatever efficiency it has solely from the statutes. The substitution of notice for process in law actions under our reform procedure is analogous to the substitution in chancery procedure of notice for subpoena and there is no pretense in the chancery practice that notice can be effectual where the service of a subpoena would be ineffectual to confer jurisdiction. On the other hand, it is well settled that notice in a chancery proceeding, if served upon a party out of the jurisdiction of the court, does not authorize the court to render personal judgment against the person thus served. Dunn v. Dunn, 4 Paige (N. Y.) 425; McEwan v. Zimmer, 38 Mich. 765, 774 (31 Am. Rep. 332) ; 1 Daniel, Chancery Practice (4th Ed.) 449, 453.

We are not concerned here as to what is sufficient no *526 tice to sustain a judgment in rem, for the jurisdiction of the court rendering such a judgment is primarily founded on the presence of the property in the state. Such a judgment may be rendered even as to a nonresident on publication only, or other constructive sérviee authorized by the laws of the state, although a personal judgment confessedly could not be so authorized. See Pennoyer v. Neff, 95 U. S. 714 (24 L. Ed. 565), a case which is hereafter discussed.

It may be conceded that none of the cases hereinbefore cited expressly hold under pertinent facts that service outside of the state is ineffectual to confer jurisdiction upon a court of the state to render personal judgment, if the statutes provide for such service. And this is not surprising in view of the fact that those cases, as well as others cited in the earlier portion of this opinion, almost without exception relate to the enforcement in another state of judgments rendered without the jurisdiction of the person of the defendant in the court rendering such judgment. The right to enforce such judgments is predicated in general upon the injustice and consequent impropriety of thus giving effect to such a judgment of another state. Judge Cooley pertinently states this view in McEwan v. Zimmer, 38 Mich. 765 (31 Am. Rep. 332), as follows: “The question, then, seems to be narrowed to this, whether the service of process beyond the jurisdiction of the court issuing it, can impose upon the party served the obligation to appear in the suit and make there his defense if he has any. If this question must be answered in the affirmative as regards a judgment rendered in Canada, it must receive a like answer when it contemplates a judgment rendered on a like service in New Zealand, or in one of the colonial courts of the Dutch East Indies. The question therefore is not one to be disposed of on a consideration merely of how this defendant might be affected; but it suggests the possible eases of citizens of this coun *527 try proceeded against in the remotest borders of civilization, on claims which may or may not have a foundation in justice, but which become established claims by default in making answer to a suit upon them. Now the service of process is for the purpose of notifying the defendant and giving him a fair opportunity to defend. But the service of process in Michigan, which requires one to appear and answer to a demand in a foreign country, would in general be of no value whatever, because a defense abroad would either be practically impossible or would be so expensive as to exceed in- cost the importance of the demand. It may therefore be justly and emphatically declared that such service would give no fair opportunity to defend, and consequently could not accomplish the purpose of process. Were-the doctrine accepted which would permit it, it might reasonably be anticipated that fictitious claims would be asserted abroad against Americans who for business or pleasure had visited foreign countries, and would become established claims by default of defense which a party wrongfully charged could not afford to make.” The facts of that case, it is true, only called for an expression of opinion as to a judgment rendered against a nonresident on service outside of the jurisdiction, but the reasoning is quite pertinent to like service upon á resident; for if, under the laws of Iowa, a citizen may be required to return here in order to defend a suit on being served with notice abroad, then such of our citizens as may properly in the ordinary course of their business be in California, the Philippines, or Canada may be required to make defense here even in petty suits to avoid personal judgments against them by default, although they might be sued where they temporarily reside, and notwithstanding the fact that under provisions usually found in statutes of limitation the period of their absence from the. state would not be computed in determining whether the cause of action had become barred. ' As quite pertinent *528 in this view and supporting our conclusion, see De La, Montanya v. De La Montanya, 112 Cal. 101; Smith v. Grady, 68 Wis. 215; Anheuser-Busch Brew. Co. v. Peterson, 41 Neb. 897; Moss v. Fitch, 212 Mo. 484 (dissapproving Hamill v. Talbott, 72 Mo. App. 22, 81 id. 210).

What we conceive to the true rule is stated in Story, Conflict of Laws, section 539 (a passage quoted in many of the cases which we have cited and in our own cases of Weil v. Lowenthal, 10 Iowa, 575, and Lutz v. Kelly, 47 Iowa, 307, as well as in Pennoyer v. Neff, hereinafter fully considered) : “No sovereignty can extend its process beyond its own* territorial limits to subject either persons or property to its judicial - decisions. ' Every exercise of authority of this sort beyond this limit is a mere nullity and incapable of binding' such person or property in any other tribunals.”

The same rule is thus stated in Cooley, Constitutional Limitations (7th Ed.) 582: “No state has authority to invade the jurisdiction of another, and by service of process compel parties there resident or being to submit their controversies to the determination’ of its courts;” and, in the same connection, this statement is made (page 583): “Due^proeéss of law would require appearance or personal service before the defendant could be personally bound by any judgment rendered.” This last form of announcing this rule is quoted also in Pennoyer v. Neff.

In England it has been held, notwithstanding statutory provisions for service of notice on absent defendants, that a personal judgment thus rendered in another country against a person' not there resident will be given no effect by the courts of England. Schibsby v. Westenholz, L. R. 6 Q. B. 154.

Now, conceding for the sajke of argumént, that the courts of England or of' France would under pertinent statutory provision's sustain a personal judgment against a resident on service made abroad (as to which something *529 is said arguendo, but little or nothing by way of decision in English cases), we have the further question whether, under out constitutional limitations, such a judgment is valid in a state of this Union which has attémpted to give its courts authority' on such service to render personal judgment upon notice to such absent defendant. Eor, as already indicated, the cases we have discussed relate to the validity of such judgments when called in question in another state, and not to their validity in the state where rendered; and the judgment which is attacked in the present proceeding is a judgment in the very court in which its validity is now questioned. Here arises a difficulty which could not have been involved in the English cases and is not passed, upon in the cases already cited; that is, the proposition that a personal judgment against a defendant, not served with process or notice- within the territorial limits of the state, is contrary to the constitutional requirements of due process of law.

Since the adoption of the fourteenth amendment to the federal Constitution in 1868, this question has frequently been presented to the Supreme Court of the United States with reference to the validity of such judgments in different states, and the leading case on the subject is that of Pennoyer v. Neff, 95 U. S. 714 (24 L. Ed. 565), in which the question was whether a personal judgment rendered in Oregon, in pursuance of service under statutory • provisions of that state, on a defendant who was not then within the limits of the state, was valid in such sense as to sustain the sale of his property on execution. The court refers to cases in-which judgments which could not have been enforced outside the state had been held valid in the state, but says that such a view is expressed less frequently than formerly, “it beginning to be considered, as it ought always to have been, that a judgment which can be treated in any state of- the Union -as contrary to the -first principles of justice and an absolute *530 nullity because rendered without any jurisdiction of the court over the party, is not entitled to any respect in the state where rendered.” It is true, the defendant was a nonresident of Oregon, but the court, in holding the judgment to be invalid because not with'in the scope of due process of law expressly refuses to base its decision on that ground, for, in quoting the language of the same court in Cooper v. Reynolds, 10 Wall. 308 (19 L. Ed. 931), in which it was expressly said without reference to the residence of the defendant against whom the judgment called in question had been rendered, that a defendant who was not within the territorial jurisdiction could not “be served with any process by which he can be brought personally within the power of the court,” says: “The fact that the defendants in that case fled from the state or had concealed themselves so as not to be reached by the ordinary process of the court, and were nonresidents, was not made a point of discussion. The opinion treated them as being without the territorial jurisdiction of the court; and the grounds and extent of its authority over persons and property were considered, when they were not brought within its jurisdiction by personal service or voluntary appearance.”

It is plain therefore that whatever is said in Pennoyer v. Neff, with reference to whether a personal judgment against a defendant not served with process or notice within the state and not entering an appearance or otherwise voluntarily conferring jurisdiction upon the court, is intended to be applicable alike to cases of residents and nonresidents, and these expressions of view leave no possible doubt in our minds as to what the Supreme Court of the United States would hold as to the validity of the judgment now before us. The court says (at page 723 of 95 U. S. (24 L. Ed. 565)): “The authority of every tribunal. is necessarily restricted by the territorial limits of the state in which it is established. Any attempt to ex *531 ercise authority beyond its limits would be deemed in every other forum, as has been said by this court, an illegitimate assumption of power and be resisted as mere abuse.” And again (at page 726 of 95 U. S. (24 L. Ed. 565)); “If, without personal service, judgments in personam obtained ex parte against- nonresidents and absent parties upon mere publication of', service which, in the great majority of cases, would never have been seen by the parties interested could be upheld and enforced, they would be the constant instruments of fraud and oppression.” And again (at page 727 of 95 U. S. (24 L. Ed. 565)) : “Process from the tribunals of one state can not run into another state and summon parties there domiciled to leave its territory, and to respond to proceedings against them. Publication of process or notice within the state where the tribunal sits can not create any greater obligation upon the nonresident to appear. Process sent to him out of the state and process published within it are equally unavailing in proceedings to establish a personal liability.” And again (at page 733 of 95 U. S. (24 L. Ed. 565)): “Since the adoption of the fourteenth amendment to the federal Constitution, the validity of such judgments may be directly questioned and their enforcement in the state resisted, on the ground that proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of law.”

After the statement of these propositions, the court proceeds to consider some apparent, exceptions to or necessary qualifications of its general language. But although it had already directed its attention to the possible distinction between the case of a resident and that of a nonresident served outside of the state, it does not make any qualifications whatever as to the case of a resident. And we are therefore satisfied that what is said as to due process of law is intended to be applicable to any personal *532 judgments rendered on service had without the state, irrespective of residence or citizenship of the defendant thus served. The statute under consideration contemplated personal judgment on service alike on residents or nonresidents by publication, or by actual service outside the state in certain classes of cases, and, as clearly stated in the dissenting opinion, the conclusion of the majority “is based upon the theory that the Legislature has no power to pass the law in question; that the principle of the statute is vicious and every proceeding under it void. It therefore affects all like cases, past and future, and in every state.”

The broad view which is expressed in Pennoyer v. Neff is unequivocally reiterated in Harkness v. Hyde, 98 U. S. 476 (25 L. Ed. 237), in which this language is used: “There can be no jurisdiction in a court of a territory to render a personal judgment against any one upon service made outside its limits. Personal service within its limits, or the personal appearance of the defendant, is essential in such cases.”

This opinion has gone much beyond the limits which the arguments of counsel would warrant, for the reason that there is involved the constitutionality of a provision found in our statutes, and some of the members of this court have entertained a reasonable doubt as to the conclusion which ought to be reached. We have now no hesitation, however, in announcing our conclusion that a state can not by providing for personal service outside of its territorial limits authorize its courts to render personal judgment against a defendant thus served. The judgment in the proceedings for the appointment of a guardian of the property of this plaintiff, predicated upon service of notice upon him in South Dakota, was therefore void, and the trial court erred in not so holding.

The action of the lower court in refusing on plain *533 tiff’s petition in equity to set aside such judgment' as void is therefore reversed. " ■■■>