38 · rsnnnari iznrosrmz.
and based upon it, is the idea that every person has a right to his
day in court; that is, shall be entitled to notice that action is being
had that may affect his rights and property. This is a well·settled
doctrine, but, like most other general rules, may have its exceptions.
In this case the plaintiff left the state knowing that this property
was liable to be sold to pay this debt, and knowing, also, that the
title under which she claimed made provisions on its face for the in-
stitution of suit to foreclose the lien; and if she saw fit to abandon
the country, and pay no attention to the property, she ought not to
be heard to complain if the law makes an exception to the general
rule in ber case. In order to succeed, the plaintiff must show that
the judgment was not voidable merely, but that it is and was abso-
lutely void for want of jurisdiction over the person and of the prop-
erty in question. The proceeding was instituted to foreclose the lien,
but no actual seizure was made. The question, then, recnrs, must
there, of necessity, be an actual seizure ofthe property, as in cases
when the proceedings are strictly in rem, in order to confer jurisdic-
‘ tion over the property within the territorial limits of the state, in case
of an absconding party or debtor?
In the case of Pcnnoyer v. Nef it is stated that substituted service
by publication may be sufficient in "cases where the object of the
action is to reach and dispose of property in the state, or some in-
terest therein, by enforcing a contract or a lien respecting the same,"
etc. If this be the law, then the proceedings were not void, but void-
able, at most. The suit was to enforce the contract of purchase not
only, but to foreclose the specified vendor’s lien as contained in the
A contract of purchase, in which contract of purchase it is insisted that
the legal title passed to plaintiffs’ vendor.
In reply to the authority as contained in Pennoyer v. Ncf, it is
said that the words referred to in the decision are but dictum. That
may be true, as applied to that case, but, if the rule is based upon
justice and right, we may reasonably expect that the doctrine will be
applied whenever a case shall be presented requiring its application;
and, really, it seems to me that there never would be a more oppor-
tune time to apply the rule than in the present case. In the case
cited from 18 Wall. it will be seen that the purchase was made by
the attorney of plaintiff in that suit, and therefore the purchaser had
actual notice; and stress was put upon that fact in declaring the title
of the purchaser bad for non-compliance with the strict letter of the
law in regard to substituted service; or, in other words, substituted
service upon a non-resident by publication, in a. mere personal action,
gave no jurisdiction over the person, and the court, therefore, had ·
no power to appoint a guardian of the minor whose rights were sought
" to be aliected.
Taking the view of the case as above suggested, in Pennoyer v. Nef,
the district court being a court of general jurisdiction, and, for the
purpose of foreclosing the lien, having jurisdiction of the rcs, it follows