La Fetra v. Gleason

McFarland, J. This action was brought to foreclose a mortgage executed by plaintiff to defendant Gleason upon certain land in California. The defendant, Charles Ingles, and a number of other persons were made parties defendant upon the general averment that they claim to have some interest in the mortgaged premises, which interest is averred to be subsequent and subject to the lien of said mortgage. Judgment by default was rendered against all of the defendants, and a decree of foreclosure entered in favor of plaintiff. Defendant Ingles appeals from the judgment. He also appeals from an order denying his motion to set aside his default and to be allowed to answer.

The appeal from the judgment is based entirely upon the judgment-roll, no facts aliunde the record being shown. Practically, therefore, appellant is in the same position as one attacking a judgment collaterally; that is, he contends that the judgment-roll does not show jurisdiction.

[248]The default of appellant was regularly entered; and the court found specially in the decree that he was duly served and made default. This finding—no facts appearing aliunde—is conclusive, unless there is something in some other part of the judgment-roll which overcomes or contradicts it. Now the only other thing in the record on the subject of service is an affidavit annexed to the returned summons made by one J. L. Dawson, in which he swears that he is over twenty-one years old, not a party to the action, etc., and that he served the summons personally on appellant by giving him a copy thereof together with a copy of the complaint, etc., on a certain day, in Clinton county, in the state of Missouri. Appellant contends that this affidavit shows a want of jurisdiction; but we do not think so. It must be borne in mind that the action as against appellant is not in personam, but a direct proceeding to reach and affect an interest of appellant in property within this state; in other words, the action is in the nature of a proceeding in rem.

In .the leading case of Pennoyer v. Neff, 95 U. S. 714, the supreme court of the United States holds that wdiile the courts of a state cannot acquire jurisdiction to render a judgment in personam against a nonresident without personal service óf process within the state, still they may, without such service, subject property of the nonresident found within the state to the satisfaction of claims of her citizens, and may enforce liens thereon in a direct proceeding instituted for that purpose, as by attachment, or by an action to enforce the lien of a mortgage. In such a case the procedure is against the property and is in its nature in rem. In a proceeding strictly in rem personal service is not necessary, but a state may require that, in such a proceeding, notice or warning must be given in a prescribed method to persons claiming interests in the property; and in such event the method must be followed. In this state the statute provides that in such a case summons may be served on a nonresident by publication in pursuance