PENNOYER v.

NEFF
1878
Mr. Justice Field
Digest by Kiko del Valle
Facts:
This action was brought by Marcus Neff against Pennoyer for the recovery of a tract of land worth
$15,000 situated in Multnomah County, Oregon. Pennoyer denied Neff's title and right to possession,
and claims that he has the title to the property.
Neff claimed title under a patent issued to him by the United States in 1866 under the Donation Law of
Oregon. Pennoyer claimed title by virtue of a sale made by the sheriff of said county, under an
execution sued out upon a judgment against Neff in an action filed against Neff by Mitchell. Neff was
then a non-resident of Oregon. In that case Mitchell v. Neff, the jurisdiction over Neff was obtained by
service of summons by publication.
Judgment was rendered in favor of Neff.
In Mitchell v. Neff:
In 1865, Mitchell applied for an order allowing the service of the summons in said action to be made
upon Neff by publication. In his affidavit of application, it was alleged that Neff, is a nonresident of
Oregon and that he resides in the State of California. It was also argued that the court has jurisdiction
of such action ad that the defendant has property in Oregon.
Court ordered that the service of summons be made by the publication for six weeks successively in
the 'Pacific Christian Advocate,' a weekly newspaper. The only evidence the court had to prove the
facts necessary to give it jurisdiction was that Neff had notice of the pendency of said action by the
publication of the summons.
The statute of Oregon1 provides that When service of the summons cannot be made and it also
appears that a cause of action exists against the defendant, or that he is a proper party to an action
relating to real property in this State, the Court or Judge may grant an order that the service be made
by publication of summons: 3. When the defendant is not a resident of the State, but has property
therein, and the court has jurisdiction of the subject of the action. It also provides that such action
must be for the recovery of money or damages or for the attachment of the property of the
nonresident. No natural person is subject to the jurisdiction of a court of the State "unless he appear in
the court, or be found within the State, or be a resident thereof, or have property therein; and, in the
last case, only to the extent of such property at the time the jurisdiction attached."
A judgment was rendered in favor of J. H. Mitchell, for less than $300.
Issues:
WON the personal judgment recovered in the State court of Oregon against Neff, then a nonresident of
the State, was valid? No.
Ratio:
The provisions of the Oregon Statute are construed to mean that, in an action for money or damages
where a defendant does not appear in the court, and is not found within the State, and is not a
resident thereof, but has property therein, the jurisdiction of the court extends only over such property,
the declaration expresses a principle of general, if not universal, law.
The authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is
established. Any attempt to exercise authority beyond those limits would be deemed in every other
forum, as has been said by this Court, an illegitimate assumption of power, and be resisted as mere
abuse. In the case against the plaintiff, the property here in controversy sold under the judgment
rendered was not attached, nor in any way brought under the jurisdiction of the court. Its first
connection with the case was caused by a levy of the execution. It was not, therefore, disposed of
pursuant to any adjudication, but only in enforcement of a personal judgment, having no relation to
the property, rendered against a nonresident without service of process upon him in the action or his

1 The statute also provides:

appearance therein. The lower court did not consider that an attachment of the property was essential
to its jurisdiction or to the validity of the sale, but held that the judgment was invalid from defects in
the affidavit upon which the order of publication was obtained and in the affidavit by which the
publication was proved.
Many of the right and powers which originally belonged to each of the States of the Union are vested in
the Federal Government. Nonetheless, these states possess and exercise the authority of independent
States, and observe the principles of public law to are applicable to them. One of these principles is
that every State possesses exclusive jurisdiction and sovereignty over persons and property within its
territory.
The other principle of public law referred to is that no State can exercise direct jurisdiction and
authority over persons or property without its territory. The laws of one State have no operation
outside of its territory except so far as is allowed by comity. As contracts however made in one State
may be enforceable only in another State, and property may be held by nonresidents, the exercise of
the jurisdiction which every State is admitted to possess over persons and property within its own
territory will often affect persons and property outside its territory. The State, through its tribunals,
may compel persons domiciled within its limits to execute, in pursuance of their contracts respecting
property elsewhere situated, instruments in such form and with such solemnities as to transfer the
title, so far as such formalities can be complied with; and the exercise of this jurisdiction in no manner
interferes with the supreme control over the property by the State within which it is situated.
In Cooper v. Reynolds, the action involved is one for damages, for the alleged false imprisonment of
the plaintiff. The defendants had fled from the State, or had absconded or concealed themselves so
that the ordinary process of law could not reach them, A writ of attachment was sued out against their
property. Publication was ordered by the court, giving notice to them to appear and plead, answer or
demur, or that the action would be taken as confessed and proceeded in ex parte as to them.
Publication was had, but they made default, and judgment was entered against them, and the
attached property was sold under it. The SC ruled in this case that 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.
Without personal service, judgments in personam obtained ex parte against nonresidents and absent
parties, upon mere publication of process, could be upheld and enforced. They would be the constant
instruments of fraud and oppression. Judgments for all sorts of claims upon contracts and for torts, real
or pretended, would be thus obtained, under which property would be seized.
Substituted service by publication, or in any other authorized form, may be sufficient to inform parties
of the object of proceedings taken where
1. property is once brought under the control of the court by seizure or some equivalent act. The law
assumes that property is always in the possession of its owner, in person or by agent, and it proceeds
upon the theory that its seizure will inform him not only that it is taken into the custody of the court,
but that he must look to any proceedings authorized by law upon such seizure for its condemnation
and sale.
2. the object of the action is to reach and dispose of property in the State, or of some interest therein,
by enforcing a contract or a lien respecting the same, or to partition it among different owners, or,
when the public is a party, to condemn and appropriate it for a public purpose. In other words, such
service may answer in all actions which are substantially proceedings in rem.
However, where the entire object of the action is to determine the personal rights and obligations of
the defendants, that is, where the suit is merely in personam, constructive service in this form upon a
nonresident is ineffectual for any purpose. Process from the tribunals of one State cannot run into
another State, and summon parties there domiciled to leave its territory and respond to proceedings
against them. Publication of process or notice within the State where the tribunal sits cannot create
any greater obligation upon the nonresident to appear. Process sent to him outside of the State, and
process published within it, are equally unavailing in proceedings to establish his personal liability.
The jurisdiction of the court to inquire into and determine his obligations at all is only incidental to its
jurisdiction over the property. Its jurisdiction in that respect cannot be made to depend upon facts to
be ascertained after it has tried the cause and rendered the judgment. If the judgment be previously
void, it will not become valid by the subsequent discovery of property of the defendant, or by his
subsequent acquisition of it.

Except in cases affecting the personal status of the plaintiff and cases in which that mode of service
may be considered to have been assented to in advance, as hereinafter mentioned, the substituted
service of process by publication, allowed by the law of Oregon and by similar laws in other States,
where actions are brought against nonresidents, is effectual only where, in connection with process
against the person for commencing the action, property in the State is brought under the control of the
court, and subjected to its disposition by process adapted to that purpose, or where the judgment is
sought as a means of reaching such property or affecting some interest therein; in other words, where
the action is in the nature of a proceeding in rem.
It is true that, in a strict sense, a proceeding in rem is one taken directly against property, and has for
its object the disposition of the property, without reference to the title of individual claimants; but, in a
larger and more general sense, the terms are applied to actions between parties where the direct
object is to reach and dispose of property owned by them, or of some interest therein. Such are cases
commenced by attachment against the property of debtors, or instituted to partition real estate,
foreclose a mortgage, or enforce a lien. So far as they affect property in the State, they are
substantially proceedings in rem in the broader sense which we have mentioned.
In conclusion, the personal judgment recovered in the State court of Oregon against the plaintiff, then
a nonresident of the State, was invalid, and did not authorize a sale of the property in controversy.
DISSENTING; Justice Hunt
Justice Hunt does not agree that a sovereign State cannot subject the land within its limits to the
payment of debts due to its citizens, or that the power to do so depends upon the fact whether its
statute shall authorize the property to be levied upon at the commencement of the suit or at its
termination.
The decision is at variance with the long established practice under the statutes of the States of this
Union. Without going into a wearisome detail of the statutes of the various States, it is safe to say that
nearly every State in the Union provides a process by which the lands and other property of a
nonresident debtor may be subjected to the payment of his debts, through a judgment or decree
against the owner, obtained upon a substituted service of the summons or writ commencing the
action. The principle of substituted service is also a rule of property under the statutes of the United
States. A formal judgment against the debtor is thus authorized by means of which any other property
of the defendant within the jurisdiction of the court, in addition to that which is the subject of the lien,
may be sold, and the title transferred to the purchaser.
Judge Cooley: The fact that process was not personally served is a conclusive objection to the
judgment as a personal claim, unless the defendant caused his appearance to be entered in the
attachment proceedings. Where a party has property in a State, and resides elsewhere, his property is
justly subject to all valid claims that may exist against him there; but, beyond this, due process of law
would require appearance or personal service before the defendant could be personally bound by any
judgment rendered.
The learned author does not make it a condition that there should be a preliminary seizure of the
property by attachment; he lays down the rule that all a person's property in a State may be subjected
to all valid claims there existing against him.
While the process of a state cannot run beyond its territory, it is equally true, however, that, in every
instance where the question has been presented, the validity of substituted service, which is used to
subject property within the State belonging to a nonresident to a judgment obtained by means thereof
has been sustained.