. oswaw v. nmrmuu. , 39
that the judgment was not absolutely void, and, whether voidable, it
is not necessary to inquire.
The cases cited by plaintiffs counsel in 10 and 18 Wall. go far
towards establishing the doctrine claimed by the plaintiff, viz.: that,
in personal actions, substituted service upon non-residents will not
confer jurisdiction over the person, and that, in proceedings in rem,
there should be an actual seizure of property in some way authorized
by law, in order to confer jurisdiction of the res. The peculiar facts in
this case justify the most liberal construction consistent with law, and
as the supreme court has said in Pennoyer v. Nqf, 95 U. S. 714, that
proceedings to foreclose a lien are in their nature proceedings in rem,
I am disposed to regard the announcement as made upon due considcr·
ation, coming as it does from the highest court in the land, although
not necessary to a decision of the case, and seemingly not in accord
with previously announced doctrine. It will be noticed, however, that
in the case of Cooper v. Reynolds, 10 Wall. 317, the language is: “So.
also, while the general rule, in regard to jurisdiction in rem, requires
the actual seizure and possession of the rec by the officer of the court,
such jurisdiction may be acquired by acts which are of equivalent
import, and which stand for and represent the dominion of the court
over the thing, and in effect subject it to the control of the court."
And then states that "among this latter class is the levy of a writ of
attachment, or seizure of real estate, which, being incapable of re-
moval, and lying within the territorial jurisdiction of the court, is, for
all practical purposes, brought under the jurisdiction of the court by
the oilicer’s levy of the writ, and return of that fact to the court. So
the writ of garnishment or attachment, or other form of service, on a
party holding a fund which becomes the subject of litigation, brings .
that fund under the jurisdiction of the court, though the money may
remain in the actual custody of one not an officer of the court."
These are some of the exceptions tothe general rule, and I am con- ,
strained to regard the declaration in 95 U. S. as giving —another ex-
ample of departure from the general rule. If this is a correct view,
then, as this is a collateral attack, the matters relied upon to defeat
defendant’s title are but irregularities, and do not render the judgment A
void. The view here taken is supported by the whole tenor of the
opinion of Justice FIELD in Pennoyer v. Ney`, 95 U. S. 714, and is
fully sustained by Justice Moons in the well—considered case of Bat-
tle v. Carter, 44 Tex. 485.
I will, however, proceed to consider the objections raised to the
validity of the judgment assailed in this cause, and by this collateral
attack.
¥ The objections raised to the validity of the judgment are as fol-
lows: The defendants were not residents, and suit was instituted by
substituted service; and- ·
First. The citation for publication commanded the publication in
the San Antonio Express. It is insisted that it should have com-