Pennoyer v. Neff

Mr. Justice Field

delivered the opinion of the court.

This is an action to recover the possession of a tract of land, of the alleged value of $15,000, situated in the State of Oregon. The plaintiff asserts title to the premises by a patent of the United States issued to him in 1866, under the act of Congress of Sept. 27,1850, usually known as the Donation Law of Oregon. The defendant claims to have acquired the premises under a sheriff’s deed, made .upon a sale of the property on execution issued upon a judgment recovered against the plaintiff in one of-the circuit courts of the State. The case turns upon the validity of this judgment.

It appears from the record that the judgment was rendered in February, 1866, in favor of J. H. Mitchell, for less than $800, including costs, in an action brought by him upon a demand for services as an attorney; that, at the time the action was commenced and.' the judgment rendered, the defendant therein, the plaintiff here, was a non-resident of the State; *720 that he' was not personally served with prooess, and did not appear therein; and that the. judgment'was entered-.upon his default in not answering the complaint, upon a constructive service of summons by publication. ■ •

The Code- of Oregon provides for such service when an. action is brought against a non-resident and absent defendant, who has property within the State. It also provides,, where the action is for the recovery of money or damages, for the attachment of the property of the non-resident. And it also declares that.no natural. person is subject-to the jurisdiction of a court of the State, “unless he appear in the court, or be found within the State, or be a resident thereof, or have property therein; and, in the last case, only to the extent of such property at the timé the jurisdiction attached.” ' Construing this latter provision to mean, that, in an action for money or damages where a defendant .does not appear in the court, and is not found" within the State, and is not a resident thereof, but has property therein, the jurisdiction of the court extends only over Such property, the declaration expresses a principle of general, if,, not universal,law. The authority of every tribunal is, necessarily restricted by the territorial limits of' the State in which jit is established; Any attempt to exercise authority •beyond .those 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. D'Arcy v. Ketchum et al., 11 How. 165. In the case against the plaintiff, the property here in controversy sold under the judgment rendered was not attached, nor in any way brought under the jurisdiction of the court. Its first connection with the. case was'caused,by a levy of the execution. It was not, therefore, disposed of. pursuant to any adjudication, but only in enforcement of a personal judgment, having-no relation to the property,'rendered against a non-resident without service of process upon him in the action, or his appearance therein. The court below did not consider that an attachment of the property was essential to its jurisdiction or- to the validity of the sale, but held .that the judgment was invalid from defects' in the affidavit upon which the order of publication was obtained, and in the affidavit by which the publication "as proved.

*721 There is some difference of opinion among the members of this court as to the rulings upon these alleged defects. The majority are-of opinion that inasmuch as the statute requires, for an order of publication, that certain facts shall appear by affidavit to the satisfaction, of the court or judge, defects in such affidavit can only be taken advantage of on appeal, or by some other direct proceeding, and cannot be urged to impeach the judgment collaterally. The majority of the court are also of opinion that the provision of the statute requiring proof of the publication in' a newspaper to be made by the. “ affidavit of the printer, or his foreman, or his principal clerk,” is satisfied when the affidavit is made by the editor of the paper. The term “ printer,” in their judgment, is there used not to indicate the person who sets up' the type, — he does not usually have a foreman or clerks, — it is rather used as synonymous with publisher. The Supreme Court of New York so held in one case; observing that, for the purpose of making the required proof,.publishers were ‘- within the spirit of the statute.” Bunce v. Reed, 16 Barb. (N. Y.) 350. And, following this ruling, the Supreme Court of California held that an affidavit made by a “ publisher and proprietor” was sufficient. Sharp v. Daugney, 33 Cal. 512. The term “ editor,” as used when the statute of New York was passed, from which the Oregon law is borrowed, usually in-eluded not only the person who wrote or-selected the articles-for publication, but the person who published the paper and put it into circulation. Webster, in an early edition of his Dictionary, gives as one of the. definitions of an editor, a person “ who superintends the publication of a newspaper.” It is principally since that time that the business of an editor has been separated from that of a publisher and printer, and has become an independent profession.

If, therefore, we were confined to the rulings of 'the court below upon the defects in the affidavits -mentioned, we should' be unab.le to uphold its decision. But it was also contended in that court, and is insisted upon here, that the judgment in the State court against the plaintiff was void for want of personal service of process on him, or of his appearance in the action in which it was rendered, and that the premises in- controversy could not be. subjected to the payment of the. demand. *722 of 'a resident creditor except by a proceeding in rem; that is, by a direct proceeding against- tbe property for that purpose. If these positions are sound, the ruling of the Circuit Court as to the' invalidity of that judgment must be sustained, notwithstanding our dissent from the reasons upon which ij; was made. And that they are sound would seem to follow from two well-established! principles of public law respecting the jurisdiction of an independent State over persons and property. The several States of the Union are .hot, it is true, in every respect independent, many of the rights and powers which originally belonged to them being now vested in the government created by the Constitution. ' But, except as restrained and limited. by that instrument, they possess and exercise -the authority of independent States, and the principles of public law to which we have referred are applicable to them. One of these principles is; that every State possesses exclusive jurisdiction and sovereignty over persons and property.within its territory. As a consequence, every State has the power to determine for itself the civil.status and capacities of its inhabitants; to prescribe the subjects upon which they may contract, the forms and solemnities with which their contracts shall be executed, the rights-and-obligations” arising from them, and'the mode in which their validity .shall .be determined and their obligations .enforced ; and also to .regulate the manner and conditions' ' upon which property situated within such‘territory, both personal and real, may be acquired,'enjoyed; and transferred. ' The -other principle of public law referred to follows from--.the one mentioned; that is, that no .State can’ exercise direct jurisdiction, .arid authority. oyer persons or property without, its territory. -Story, Confl. Laws, c. 2; Wheat. Int. Law, pt. 2, c. 2. The several States are of equal dignity and authority,- and the independence-of one implies the'exclusion of power from all others. And' so it is .laid down- by jurists, as an elementary principle, that the laws of one State have no operation-outside .of .its territory, except so far as is allowed by comity; and that ho tribunal established by it can extend its process beyond that territory so as to subject either persons or property to its decisions. “Any. exertion of authority o'f this, sort beyond this limit,” says Story, “ is. a mere nullity, and incapable of binding *723 such persons or.property in any other tribunals.” Story, Confl. Laws,.sect. 539.

But as contracts made in one State may be enforceable only in another State, and property may be held by non-residents, the exercise of- ,the jurisdiction which every State is admitted to possess oyer persons and property within its own territory will often affect .persons and property, without it.' To any influence exerted in this way by a State affecting persons resident or property situated elsewhere, no objection can be justly taken ; whilst any direct exertion of authority upon them, in an attempt to give ex-territorial operation to its laws, or to enforce an ex-territorial jurisdiction by its tribunals, would be deemed an encroachment upon the independence of the State in which the persons are domiciled or the property is situated, and be resisted as usurpation.

Thus the State, -through its tribunals, may compel persons domiciled within its limits to execute, in pursuance of their' contracts respecting property elsewhere situated, instruments in such form-and with such solemnities as to transfer the title, so far as such formalities can be complied with; and the exercise of this jurisdiction in no manner interferes with the supreme control over the. property by the State within which it is situated. Penn v. Lord Baltimore, 1 Ves. 444; Massie v. Watts, 6 Cranch, 148; Watkins v. Holman, 16 Pet. 25; Corbett v. Nutt, 10 Wall. 464.

So the State, through its tribunals, may subject property situated within its limits owned by non-residents to the payment of the demand of its own citizens against them; and the exercise of this jurisdiction in no respect infringes upon the sovereignty of the State where the owners are domiciled. Every State owes protection to its own citizens; and, when nonresidents deal with them, it is a legitimate and just exercise of authority to hold and appropriate any property owned by such .non-residents to satisfy the claims of its citizens. It- is in virtue of the State’s jurisdiction over the property of the nonresident situated.within its limits that its tribunals can inquire into that non-resident’s obligations to its own citizens, and the inquiry can then be carried only-to the extent necessary to control -the disposition of the property. If the non-resident *724 have no property in the State, there is nothing upon which the tribunals can adjudicate.

These views are not new. They have been frequently expressed, with more or less distinctness, in. opinions of eminent judges, and have been carried into adjudications in numerous cases. Thus, in Picquet v. Swan, 5 Mas. 35, Mr. Justice Story said: —

. “ Where a party is within a territory, he may justly be subjected to its pi-ocess, and bound personally by the judgment pronounced on such process against him. Where he is not within such territory, and .is not personally subject to its laws, if, on account of his supposed or actual property being within the territory, process by the local laws may,'by attachment, go to compel his appearance, and for his default to appear judgment may be pronounced against him, such a judgment must, upon -general principles, be deemed only to hind him to the extent.of such property,, and cannot have the effect of a conclusive judgment in personam, for the plain reason, that, exfeept so far as the property is concerned, it is a judgment coram non judiceP

And in Boswell’s Lessee v. Otis, 9 How. 336, where the title of the plaintiff in ejectment was acquired on a sheriff’s sale, under a money decree rendered upon publication of'notice against non-residents, in a'suit brought to enforce a contract relating to land, Mr. Justice McL.ean said: —,

“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 courtv In the’ latter case, the defendant is not personally bound by the judgment beyond the property in question. And .it is immaterial whether the proceeding against the property be by an attachment or bill in chancery. It must be substantially a proceeding in remP

These citations arS not made as authoritative expositions of the law; for the language was perhaps not essential to the decision of the cases in which it was used, but,as expressions of the opinion of eminent jurists. But in Cooper v. Reynolds, reported in the 10th of Wallace, it was essential to the disposition of the case to declare the effect of a personal action against an absent party, without the jurisdiction of the court, not served *725 •with process or voluntarily submitting to, tbe tribunal, when it was sought to subject his property to the payment of a demand of a resident complainant; and in the opinion there delivered' we have a clear statement of the law as to the. efficacy of such actions, and the. jurisdiction of the court over them. In that case, the action was for damages for alleged false .imprisonment of the plaintiff; and, upon his affidavit that the defendants had fled from the State, or had absconded or concealed themselves so that the ordinary process of law could not reach them, a writ of attachment was' sued out against their property. Publication was ordered by the court, giving notice to them to appear and plead, answer or demur, or that the action would be- taken as confessed and proceeded in ex . parte as-to them. Publication was had ; but they made default,.and judgment was entered against them, and the attached property was sold under it. The-purchaser'having been put into possession 'of the property, the original. owner brought ejectment for its • recovery. In considering the character of the proceeding, the court, speak-, ing through Mr. Justice Miller, said: — -

“ Its .essential purpose or nature is to establish, by the judgment of the court, a demand or claim against the defendant, and subject his property lying within the territorial jurisdiction of the court to the payment of that demand. But.'the plaintiff is met'at the commencement of- his proceedings by the fact that the defendant is not within the territorial jurisdiction, and cannot be served with any process by which he can be brought personally within the power of the court. For this difficulty the statute has provided a' remedy. It says that, upon affidavit being made of that fact, a writ of attachment may be issued and levied on any of the defendant’s, property, and a publication may be made warning him to appear; and that thereafter the court may proceed in the case, whether he' appears, or not. , If .the defendant appears,, the cause becomes mainly a suit in* personam, with the added incident, that the. property attached remains liable, under the control of the • court, to answer to any -demand which may be established-against the defendant by the final judgment of -the court. But if there is no appearance of the defendant, and no service of process,on him, the case becomes in its essential nature a proceeding-in rem, the only effect of which is to subject the property .attached to the payment of the demand •which the. court may find to be' due to the plaintiff. That..such is *726 the nature of this proceeding in this latter class of cases is clearly evinced by two well-established propositions: first, the judgment of the court, though in form a personal judgment against the defendant, has no effect beyond the property attached in-that suit. No general execution can be issued for any balance unpaid after-the attached property is exhausted. No suit can.be maintained on such a judgment in the same court, or in any other ; nor can it be used as evidence in any other proceeding not affecting the attached property; nor could the costs in that proceeding be collected of defendant out of any other property than that attached in the suit. Second, the eourt, in such a suit, cannot proceed, unless the ofiicer finds some property of defendant op Which to levy the writ of attachment. A return that - none can be found is the end of the ease, and deprives the court of further jurisdiction, though the publication may -have been duly made and proven in court.”

The fact that the defendants in that case ha‘d fled from the State, or had concealed themselves, so as not to be reached by the ordinary process of the court, and were not non-residents, was not made a point in the, decision. 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 thus situated were considered, when they were not brought within its jurisdiction by personal service or voluntary appeai’anee.'

The writer of the present opinion considered that some of the objections to the preliminary proceedings in the attachment suit were well taken, and therefore dissented from the judgment of the court; but to the doctrine declared in the above citation he agreed, and he may add, that it received the approval of all the judges. It is the only doctrine consistent with proper protection to citizens of other States. If, without personal service, judgments in personam, obtained ex parte against nonresidents and absent “parties, upon mere publication of process, which, in- the great majority, of cases, would never be seen by thé parties interested, could be upheld and enforced, they would be the constant instruments of fraud and oppression. Judgments for all sorts of claims upon contracts and for torts, real or pretended, would be thus obtained, under which property would be seized, when the evidence of the transactions upon *727 which they vs ere founded, if they ever had any existence, had •perished.

Substituted service by publication, or inany other authorized form, may be sufficient to inform parties of the object of proceedings taken where property is once brought under the. control of the court by seizure or some equivalent act. The law assumes that property is always'in the possession of its owner, in person or by agentand it proceeds upon the theory that its seizure will inform him, not only that it is taken into the' custody of the court, but that he must look to a'hy proceedings authorized by law upon such seizure for its condemnation and sale. Such service may also be sufficient in cases where the object of the action is to reach and, dispose of property in the State, or of some interest therein, by enforcing a contract or a lien respecting the same, or to partition it among different, owners, or, when the public, is a party, to condemn and appropriate it for a public purpose. In other words, such service may answer in all actions which are substantially proceedings in rent. But where the entire object of the action is to determine the personal rights and' obligations of the. defendants, that is, where the suit is merely in personam, constructive service in this form upon a non-resident is ineffectual for any purpose. - Process from the tribunals of one State cannot run into another State, and summon parties there domiciled to leave its territory .and respond to proceedings. against ■ them. Publication of process or notice within the State where the tribunal sits cannot create- any greater obligation upon the non-resident to appear. Process sent to him out of the State, and process published within it, are equally unavailing in proceedings to establish his personal liability.

The want of authority of the tribunals of' a State to. adjudicate upon the obligations of non-residents, where they have no property within its limits, is not denied by the court below: but the position is .assumed, that, -where they have property within the State, it is immaterial whether the property is in the first instance brought' under the control of the court by attachment or .some'other equivalent act, anfi afterwards applied by its judgment to, the-satisfaction of demands against its owner; or such -detilhnds be first established in a personal action, and *728 the property of the non-resident be afterwards seized and sold on execution. But the answer to this position has already been given in the statement, that the jurisdiction of the court to inquire into and determiné his obligations at all is only incidental to its jurisdiction over the property. Its jurisdiction'in that respect cannot be made to depend upon facts to be ascertained after it has tried the cause and rendered the judgment. If the judgment be previously void, it will not become valid by the subsequent discovery of property of the defendant, or by his subsequent acquisition of it. The judgment, if void . when rendered, will always remain void:' it cannot occupy the doubtful position of being valid if property be found, and void if there be ¡none. Even if the position assumed were confined to cases where the non-resident defendant possessed property in the State at the commencement of the action, it would still make the validity of the proceedings and judgment depend upon the question whether, before the levy of the execution, the defendant had or had not disposed of the property. If before the levy the property should be sold, then, according to this position, the judgment would not be binding. This doctrine would introduce a new element of uncertainty in judicial proceedings. The contrary is the law: the validity of every judgment depends upon the jurisdiction of the court before it is rendered* not upon what may occur subsequently. ■ In Webster' v. Reid, reported in' 11th of Howard, the plaintiff claimed title to land sold under judgments recovered in suits brought in a térritorial court of Iowa, upon publication of notice under, a law of the territory, without service of process; and the court skid: —

“These suits were not a proceeding in rem against the land, but -were 'in personam against tbe owners of it. Whether they all resided within the territory or not does not appear, nor is it á matter of any importance. No person is required to answer in a suit on whom process has not been served, or whose property has not been attached. In this case, there was no personal notice, nor an attachment or other proceeding against the land, until after the judgments. The judgments, therefore, are nullities, and did not authorize the executions on which the land was sold.”

*729 The force and effect of judgments rendered against non-residents without personal service of process upon them, or their voluntary appearance, have been the subject of frequent consideration in the courts of the United States and of the several States, as attempts have bees made tó enforce such, judgments in States other than those iif which they were rendered, under the provision of the Constitution'requiring that “full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State ; ” and the act of Congress providing for' the mode of authenticating such acts, records, and proceedings, and declaring that, when thus authenticated, “ they shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are or shall be taken.” In the earlier cases, it was supposed that the act gave to all judgments the same effect in other States which they had by law in the State where rendered. But this view was after-wards qualified so as to make the act applicable only when the court rendering the judgment ha'd jurisdiction of the parties and of the subject-matter, and not to preclude an inquiry into the jurisdiction of the court in which the judgment was rendered, or the fight of the State itself to exercise authority over the person or the subject-matter. M'Elmoyle v. Cohen, 13 Pet. 312. In the case of D'Arcy v. Ketcchum, reported in the. 11th of Howard, this view is stated with great clearness. That was an action in the Circuit Court of the United States for Louisiana, brought upon a judgment rendered in New York under a State statute, ágainst two joint debtors, only one of whom had been served with process, the 'other being a non-resident of the State. The Circuit Court held the judgment conclusive and binding upon the non-resident' not' served with process; but this court reversed its decision, observing, that it was a familiar rule that countries foreign to'óur own disregarded a judgment merely against the person, where the defendant had not been served with process nor had á day in court; th'at national comity was never thus extended; that the proceeding was deemed an- illegitimate assumption of power, and resisted as mere abuse; that no faith and credit or force and effect had been given to such judgments by any State of the Union, so far- *730 as known; and that the State courts had uniformly, and in many instances, held them to be void. “ The international law,” said the court, “as it existed among the States in 1790, was that a judgment rendered in one State, assuming to bind the person of a citizen of another, was void within the foreign State, when the defendant had not been served with process' or voluntarily made defence; because neither the legislative jurisdiction nor that of courts of justice had binding force.” And-the court held that the act of Congress did not intend to declare a new rule, or to embrace judicial records of this description. As was stated in a subsequent case, the doctrine of this court is, that the act “ was not designed to displace that principle of natural justice which requires a person to have notice of a suit before he can be conclusively bound by its result, nor those rules of public law which protect "persons and property within one State from the exercise of jurisdiction over them by another,” The Lafayette Insurance Co. v. French et al., 18 How. 404.

This whole subject has been very fully and learnedly considered in the recent case of Thompson v. Whitman, 18 Wall. 457, where all the authorities jare carefully reviewed and distinguished, and the conclusion above stated is not only reaffirmed, but the doctrine is asserted, that the'record of a judgment rendered in another State may .be contradicted as to the facts necessary -to give the court jurisdiction against its recital of their existence. In all the cases brought in the State and Federal courts, where- attempts have been made under the act of Congress to give effect in one State to personal judgments rendered in another State ‘'against non-residents, without service upon them, or upon substituted service by publication, or in some.other form, it has been held, without-an exception, so far as-we are aware, that such judgments were without any binding force, except ,as to property, or interests in property, within the State, to" reach and affect which was the object of-the action in which the judgment was rendered, and which property was brought under control of the- court in connection with the-process against the -person,. The proceeding in such' cases, though in the form of 'a personal action, has been uniformly treated, where service wag/hot obtained, and the party did not volunta *731 rily appear, as effectual and binding merely as a proceeding in rem, and as having no operation beyond the disposition of the property, or some interest therein. And the reason assigned for this conclusion has been that whieh we have already stated,, that the tribunals of one State have no jurisdiction over persons beyond its limits, and can inquire only into their obligations to its citizens when exercising .its conceded- jurisdiction over their property within its limits. In Bissell v. Briggs, decided by the Supreme Court of Massachusetts as early as. 1813, the.law is stated substantially in conformity with these views. In that case, the court considered at length the effect'of' the constitutional provision, and the act of Congress mentioned, and after stating that, in' order to entitle the judgment rendered in any court of the United States to the full faith and credit mentioned in the Constitution, the court must have • had jurisdiction not only of the cause, but of the parties, it proceeded to illustrate its position by observing, that, -where a debtor living in one State has goods, effects, and credits in another, his creditor living in the other State may have the property attached pursuant to its laws, and, oh recovering judgment, -have the property applied to its satisfaction; and that the. party in whose hands the property was would be protected by the judgment in the State of the debtor against a suit for it, because the court' rendering the judgment had jurisdiction to.that extent; but that if the property attached were insufficient to satisfy the judgment, and the creditor should sue on that judgment in the State of the debtor,' he would fail, because the. defendant was not amenable to the court rendering the judgment. In other words, it was held that over the property within the State the - court had jurisdiction by the attachment, but had none over' his person; and that any determination of Ms liability,'except.só'far as was necessary for the disposition -of the property, was invalid.

In Kilbourn v. Woodworth, 5 Johns, (N. Y.) 37, an action of’ debt was brought in New York upon a personal judgment, recovered in Massachusetts. The defendant in that judgment was not served with process; and the suit was. commenced by the attachment of a bedstead belonging to the. defendant, accompanied with a summons to appear, served on his wife after she had left her place in Massachusetts. The court held- that ’ *732 the attachment bound only the property attached as a proceeding in rem, and that it could not bind the defendant, observing, that to bind a defendant personally, when he was never personally summoned on had notice of the proceeding, would be contrary to the first principles of justice, repeating the language in that respect of Chief Justice DeGrey, used in the case of Fisher v. Lane, 3 Wils. 297, in 1772. See also Borden v. Fitch, 15 Johns. (N. Y.) 121, and the cases there cited, and Harris v. Hardeman et al., 14 How. 334. To the same purport decisions are found in all the State courts. In several of the cases, the decision has been accompanied with the observation that a personal judgment thus recovered has no binding force without the State in which it is rendered, implying that in such State it may be valid and binding. But if the court has no jurisdiction over the person of the defendant by reason of his non-residence, and, consequently, no authority to pass upon his personal rights and obligations; if the whole proceeding, without service upon him -or his appearance, is 'coram non judiee, and void; if to hold a defendant bound by such a judgment is contrary to the first principles of justice, — it is difficult to see hos tile judgment can legitimately have any force within the State. The language used can be justified only on the ground • that there was no mode of directly reviewing such judgment or impeaching its validity within the State where rendered; and that, therefore,'- it could be called in question only when its enforcement was’ elsewhere attempted. In later cases, this language, is repeated with less frequency than formerly, it beginning to be considered, as it always ought to have been,that a judgment which can be treated in any State of this Union as contrary to the first principles of justice, and as an absolute nullity, because rendered without any jurisdiction of the tribunal over-the party, is not entitled to any respe'ct in the State where rendered. Smith v. McCutchen, 38 Mo. 415; Darrance v. Preston, 18 Iowa, 396; Hakes v. Shupe, 27 id. 465; Mitchell’s Administrator v. Gray, 18 Ind. 123.

Be. that as it may, the courts of the United States are not required to give effect to judgments of this character-when any right is claimed under thepi,. Whilst they are not foreign tribunals in their relations to the State courts, they are tribunals *733 of a different sovereignty, exercising a distinct and independent jurisdiction, and are bound to give to the judgments of the State courts only the same faith and credit’ which the courts of another State are bound to give to them.

Since tbe 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 deter mine the personal rights and obligations of parties over' whom that court has no jurisdiction do not constitute, due process of' law. Whatever difficulty may be. experienced in giving to' those terms a definition which will embrace every permissible exertion of power affecting private rights, and exclude such as is forbidden, there can be no doubt of their meaning when' applied to judicial proceedings. They then mean a course of legal proceedings according .to those rules and principles which’ have been established in our- systems of jurisprudence for the protection and enforcement of private rights. To give such proceedings any validity, there must bem tribunal competent by its constitution — that is, by the law offTts creation — to pass upon the subject-matter of the suit; and, if that involves merely a determination of the personal liability of .the defendant, he must be brought within 'it's jurisdiction by service of process within tbe State, or his voluntary appearance.

Except in cases affecting the personal status of the plaintiff, and cases in which that mode of service may be considered to •have been- assented to in advance, as hereinafter mentioned, tbe substituted service of process by publication, allowed by the law of Oregon and by similar laws in other States, where actions axe brought against non-residents, is effectual only where, in connection with process ¡against the person for commencing the action, property in the State is brought under the control of tbe court, and subjected to its disposition by process adapted to that purpose, or where the judgment is sought, as a means of reaching such property or affecting some interest therein; in other words, where the action is in the nature of a proceeding in rem. As stated by Cooley in his Treatise on Constitutional Limitations, 405, for any other purpose than'to subject the property of a non-resident to valid claims, against *734 him in the State, “ due process of law would require appearance or personal service before the defendant could be personally bound by any judgment rendered.”

It is true that, in a strict sense, a proceeding in rem is one taken directly against property, and has for its object the disposition of the property, without reference to the title of individual claimants; but, in’ a larger and more general sense, the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or-of some interest therein. Such are cases commenced by attachment against the property of debtors,’ or instituted to partition real estate, foreclose a mortgage, or enforce a lien. So far as they affect property in the State, they are substantially proceedings in rem in the broader sense which we have mentioned.

It is hardly necessary to observe, that in all we have said we have had reference to proceedings in courts of first instance; and to their jurisdiction, and not to proceedings in an appellate tribunal to review the action of such courts.- The latter may be taken upon' such- notice, .personal or constructive, as the State creating the tribunal may provide. They are considered as rather a continuation of the original litigation than the commencement of a new action. Nations et al. v. Johnson et al., 24 How. 195.

It follows from the views expressed that the personal .judgment recovered in the State court of Oregon against the plaintiff herein, then- a non-resident of the State, was without any validity,- and did not authorize a sale of the property in controversy. - ,

To prevent any misapplication of the views expressed in this-opinion, it is proper to observe that we do not- mean to assert, by any thing we have said, that a .State mqy not authorize proceedings to determine the status of one of its citizens towards a non-resident, which would be binding within the State, though made without service of process or personal notice to the' notí-resident.- .The jurisdiction which every State possesses to determine' the civil status and capacities of all its inhabitants involved authority to prescribe the conditions on which proceedings affecting them may be commenced and .carried on Within its territory. The State, for example, has absolute *735 right to prescribe the condition's upon which the marriage relation between its own citizens shall be created, and' the causes for which it may be dissolved. One of the parties guilty of acts for which, by the law of the State, a dissolution may be granted, may have removed to a State where no dissolution is permitted. The complaining party would, therefore, fail if a divorce were sought in the State of the defendant; and if application could not be made "to the tribunals of the complainant’s domicile in such case, -and proceedings be there instituted without personal service of process or personal notice to the offending party, the injured citizen would be without redress. Bish. Marr. and Div., sect. 156.

Neither do we mean to assert that a State may not require a non-resident entering into a partnership or association, within its limits, or making contracts enforceable there, to- appoint an agent or representative in the State to receive service of process and notice in legal proceedings instituted with respect to such partnership, association, or contracts, or to designate a place where such service may- be made and notice given, and provide, upon their failure, to make such appointment or to designate such place that service may be made upon a public officer designated for that purpose, or in some other prescribed way, and that judgments rendered upon such service may not be binding upon the non-residents both within and without the State. As was said by the Court of Exchequer in Vallee v. Dumergue, 4 Exch. 290, “ It is not -contrary to natural justice that a man who has agreed to receive-a particular mode of notification of legal proceedings should be bound by a judgment in which that particular mode of notification has been followed, even though he may not have actual notice of them.” See also The Lafayette Insurance Co. v. French et al., 18 How. 404, and Gillespie v. Commercial Mutual Marine Insurance Co., 12 Gray (Mass.), 201. Nor do we doubt that a State, oh creating corporations or other institutions for pecuniary or charitable purposes, may provide a mode in. which their conduct may be investigated, their obligations enforced, or their charters revoked, which shall require other than personal service upon their officers or members. Parties becoming members. of .such corporations or Institutions would hold their *736 interest subject to the conditions prescribed by law. Copin v. Adamson, Law Rep. 9 Ex. 345.

In the present case, there is no feature of this kind, and, consequently, no consideration of what would be the effect of such legislation in enforcing the contract of a non-resident can arise. The question here respects only the validity of a money judgment rendered in one State, in an action upon a simple contract against the resident of another, without service of process upon him, or his appearance therein.

Judgment affirmed.