A personal judgment for costs may not be rendered against the
defendant on default in an action of trespass to try title to real
estate if citation was served on him by publication, as a
nonresident and not personally, and if such judgment be entered, it
cannot be enforced against other property of the defendant within
the jurisdiction of the court.
The following was the case as stated by the court.
This was an action of trespass to try the title to certain land
in Texas. It is the form in use to recover possession of real
property in that state.
The plaintiffs claimed the land under a deed to their grantor,
executed by the Sheriff of McLennan County in that state upon a
sale under an execution issued on a judgment in a state court for
costs, rendered against one Henry Alderson, then owner of the
property, but now deceased. The defendants asserted title to the
land as heirs of Alderson, contending that the judgment under which
the alleged sale was made was void because it was rendered against
him without personal service of citation or his appearance in the
action.
The material facts of the case, as disclosed by the record, are,
briefly, these:
On the 16th of July, 1855, a tract of land comprising one-third
of a league was patented by Texas to Alderson, who had been a
soldier in its army. One undivided half of this tract was claimed
by D. C. Freeman and G. R. Freeman, and they brought an action
against him for their interest. The pleadings in that action are
not set forth in the transcript, but from the record of the
judgment therein, which was produced, we are informed that the
defendant was a nonresident of the state, and that the citation to
him was made by publication. There was no personal service upon
him, nor did he
Page 119 U. S. 186
appear in the action. The judgment, which was rendered on the
first of October, 1858, was of a threefold character. It first
adjudged that the plaintiffs recover one undivided half of the
described tract. It then appointed commissioners to partition and
divide the tract, and set apart, by metes and bounds, one-half
thereof, according to quantity and quality, to the plaintiffs, and
to make their report at the following term of the court. And
finally it ordered that the plaintiffs have judgment against the
defendant for all costs in the case, but stayed execution until the
report of the commissioners should be returned and adopted and a
final decree entered.
At the following term, the commissioners made a report showing
that they had divided the tract into two equal parcels. The report
was confirmed, and on the 31st of March, 1859, the court adjudged
that the title to one of these parcels was divested from Alderson,
and vested in the plaintiffs, the two Freemans, and that they
recover all costs in that behalf against him, which were $61.45,
and that execution issue therefor. Execution therefor was issued to
the Sheriff of McLennan county on the 30th of May directing him to
make the amount out of "the goods, chattels, lands, and tenements"
of the defendant. It was levied on the other half of the divided
tract, which remained the defendant's property. On the 5th of July,
1859, this half was sold by the sheriff to one James E. Head for
$66.79, being the costs mentioned, and his fees for the levy and
for his deed, which was executed to the purchaser. In September
following, Head conveyed the premises to D. C. Freeman for the
alleged consideration of $178. Two of the defendants disclaimed
having any interest. The other defendants, including Freeman, so
far as their title is disclosed by the transcript, claimed under
the sheriff's deed.
On the trial, the defendants, to show title out of the
plaintiffs, offered in evidence the judgment for the costs, the
execution issued thereon, and the sheriff's deed; to the
introduction of which the plaintiffs objected on the ground that
the judgment for costs was a judgment
in personam, and not
in rem, and was rendered against the defendant, who was a
nonresident of the state, without his appearance in the action or
personal
Page 119 U. S. 187
service of citation upon him, but upon a citation by publication
only, and therefore constituted no basis of title in the purchaser
under the execution. The court sustained the objection and excluded
the documents from the jury, and the defendants excepted to the
ruling. No other evidence of title being produced by the
defendants, a verdict was found for the plaintiffs and judgment in
their favor was entered thereon, to review which the case is
brought to this Court on a writ of error.
MR. JUSTICE FIELD, after stating the case, delivered the opinion
of the Court as follows:
Actions
in rem, strictly considered, are proceedings
against property alone treated as responsible for the claims
asserted by the libellants or plaintiffs. The property itself is in
such actions the defendant, and, except in cases arising during war
for its hostile character, its forfeiture or sale is sought for the
wrong, in the commission of which it has been the instrument, or
for debts or obligations for which by operation of law it is
liable. The court acquires jurisdiction over the property in such
cases by its seizure, and of the subsequent proceedings by public
citation to the world, of which the owner is at liberty to avail
himself by appearing as a claimant in the case.
There is, however, a large class of cases which are not strictly
actions
in rem, but are frequently spoken of as actions
quasi in rem, because, though brought against persons,
they only seek to subject certain property of those persons to the
discharge of the claims asserted. Such are actions in which
property of nonresidents is attached and held for the discharge of
debts due by them to citizens of the state, and actions for the
enforcement of mortgages and other liens. Indeed, all proceedings
having for their sole object the sale or other disposition of the
property of the defendant to satisfy the
Page 119 U. S. 188
demands of the plaintiff are in a general way thus designated.
But they differ, among other things, from actions which are
strictly
in rem in that the interest of the defendant is
alone sought to be affected, that citation to him is required, and
that judgment therein is only conclusive between the parties.
The state has jurisdiction over property within its limits owned
by nonresidents, and may therefore subject it to the payment of
demands against them of its own citizens. It is only in virtue of
its jurisdiction over the property, as we said on a former
occasion, that its tribunals can inquire into the nonresident's
obligations to its own citizens, and the inquiry can then proceed
only so far as may be necessary for the disposition of the
property. If the nonresident possesses no property in the state,
there is nothing upon which its tribunals can act.
Pennoyer v.
Neff, 95 U. S. 723.
They cannot determine the validity of any demand beyond that which
is satisfied by the property. For any further adjudication, the
defendant must be personally served with citation or voluntarily
appear in the action. The laws of the state have no operation
outside of its territory except so far as may be allowed by comity;
its tribunals cannot send their citation beyond its limits and
require parties there domiciled to respond to proceedings against
them, and publication of citation within the state cannot create
any greater obligation upon them to appear.
Ib., p.
95 U. S. 727.
So, necessarily, such tribunals can have no jurisdiction to pass
upon the obligations of nonresidents except to the extent and for
the purpose mentioned.
This doctrine is clearly stated in
Cooper v.
Reynolds, 10 Wall. 308, where it became necessary
to declare the effect of a personal action against an absent party
without the jurisdiction of the court, and not served with process
or voluntarily appearing in the action, and whose property was
attached, and sought to be subjected to the payment of the demand
of the resident plaintiff. After stating the general purpose of the
action, and the inability to serve process upon the defendant, and
the provision of law for attaching his property in such cases, the
Court, speaking by MR. JUSTICE MILLER, said:
Page 119 U. S. 189
"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 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 court in such a suit cannot proceed unless the
officer finds some property of defendant on which to levy the writ
of attachment. A return that none can be found is the end of the
case, and deprives the court of further jurisdiction, though the
publication may have been duly made and proven in court."
Page
77 U. S.
318.
To this statement of the law it may be added what, indeed, is a
conclusion from the doctrine, that while the costs of an action may
properly be satisfied out of the property attached or otherwise
brought under the control of the court, no personal liability for
them can be created against the absent or nonresident defendant,
the power of the court being limited, as we have already said, to
the disposition of the property, which is alone within its
jurisdiction.
The pleadings in the case in which judgment was rendered for
costs against Alderson are not before us. We have only the formal
judgment, from which it should seem that the action was to recover
an undivided interest in the property, and then
Page 119 U. S. 190
to obtain a partition of it and have that interest set apart in
severalty to the plaintiffs -- a sort of mixed action to try the
title of the plaintiffs to the undivided half of the property and
to obtain a partition of that half. Such action, though dealing
entirely with the realty, is not an action
in rem in the
strict sense of the term. It is an action against the parties
named, and though the recovery and partition of real estate are
sought, that does not change its character as a personal action.
The judgment therein binds only the parties in their relation to
the property. The service of citation by publication may suffice
for the exercise of the jurisdiction of the court over the property
so far as to try the right to its possession, and to decree its
partition, but it could not authorize the creation of any personal
demand against defendant, even for costs, which could be satisfied
out of his other property.
The judgment is for all the costs in the case, and no order is
made that they be satisfied out of the property partitioned. Had
satisfaction been thus ordered, no execution would have been
necessary. The execution, also, is general in its direction,
commanding the sheriff to make the costs out of any property of the
defendant.
The judgment, as far as the costs are concerned, must therefore
be treated as a judgment
in personam, and, for the reason
stated, it was without any binding obligation upon the defendant,
and the execution issued upon it did not authorize the sale made,
and, of course, not the deed of the sheriff. Were the conclusion
otherwise, it would follow, as indeed it is claimed here, that a
joint owner of real property might sue a nonresident co-tenant for
partition, and, having had his own interest set apart to himself,
proceed to sell out on execution the interest of his co-tenant for
all the costs.
The judgment of the court below must be
Affirmed.
