swrrr v. msraas. 45
l The opinion ih this case, by Mr. Chief Justice Loan, is a` clear and able
exposition of the law on the subject of acquiring jurisdiction by substi-
tuted or constructive service of process. The case was an action to recover
real property, and the defendant claimed title under a sale on an execution
issued on a judgment against the plaintiffs grantor prior to the convey-
ance to the latter. The property was attached, and an attempt was made
to serve a summons on the defendant as a non-resident by publication.
The order of publication omitted to direct that a copy of the summons
and complaint be mailed to the defendant at his place of residence, nor
did it state any reason for such omission, as that such residence was un-
known to the plaintiff, and could not with reasonable diligence be ascer- ,
tained by him. The service was held invalid, and the judgment void,
for the reason that the court never acquired jurisdiction ofthe person of
the defendant; and that in such a proceeding thereis no presumption in
favor of the jurisdiction, but the record must show a compliance with
the statute in every essential particular. And this rule has been applied
by the courts of the state to a judgment of a national court sitting in this
state.
In Victor v. Davis, 11 Or. 447, 5 Pac. Rep. 750, a decree of- this court
was questioned collaterally, and held for naught, on the alleged ground
that the proceeding to acquire jurisdiction of anabsent defendant was
invalid, on the authority of Odell v. Campbell, 9 Or. 298. _
The suit in which the decree in question was given, may be considered
as in personam and in rem. So far as it was sought to enforce the lien of
the mortgage on the property included therein, it was in the nature of a
suit in rem, (Pennoyer v. Nef, supra, 733;) but so far as it was sought to
obtain a money judgment against Grigsby it was in personam., As to the
proceeding in rem, it was in the power of the state to provide a substi-
tuted service of the summons, in case the defendant could not be found,
by delivering it to some person of the family, at his usual place of abode
or otherwise; but as to the judgment in personam, nothing short of per-
sonal service or a voluntary appearance could authorize that. .
’ In proceeding to enforce the lien of the mortgage by the sale of the
property on a substituted service of the summons, the court was not pro-
ceeding according to the course of the common law, and there is no pre-
sumption in favor of its jurisdiction, or the regularity of the proceedings
on which it dependsi Odell v. Campbell, 9 Or. 298.
In conclusion, it does not appear from the· record that Linn-county
was Grigsby’s "usual place of abode" in the state at the date of the serv-
ice of the summons on Mary Backus for him, and there is no presump-
tion that it was, and therefore it does not appear that the service or notice
required by the statute was had or given, or that the circuit court of Linn
county ever acquired jurisdiction to order a sale of the property. ‘ ~ .
It is not necessary to consider the other objections to the service, nor
whether the plaintiff could in this action contradict the return of the
sheriff, so as to show that Grigsby, at the date of the service on Mary
Backus, had no place of abode in Linn county, or even in the state. The
question was argued and submitted upon the understanding thatjf the