Sturgis v. Fay

Perkins, J.

At the October term, 1859, of the Allen Common Pleas, Fay commenced an action against Sturgis upon a promissory note. The writ in the cause was served by leaving a copy at the residence of Sturgis. There was judgment against him by default.

At the succeeding January term, Sturgis filed an affidavit showing that he was absent from the State when process was served, and was ignorant of the pendency of the suit till after judgment, and moved that the judgment be set aside. The affidavit' did not allege that affiant had any merits' in his application, nor show any excuse for not moving- to set aside the default at the same term of the Court at which judgment was rendered.

The Court overruled the motion to set aside.

The counsel for appellant contends that the judgment should have been set aside, because it was a nullity. He insists that it was a judgment rendered upon constructive service of notice, and that 2 R. S. 1852, § 395, p. 126, applies to it. That section reads: “ No personal judgment shall be rendered against a defendant constructively summoned, who has not appeared in the action.”

What, then, is constructive service ? The State of Indiana has jurisdiction over all persons and private property withm her borders. She may subject both the one, and t^e other, to her *431 judicial power. But she can not thus subject either persons or property not within her jurisdiction. It sometimes happens that the person is within her jurisdiction, while his property is not; and, again, that the property is within her jurisdiction, while the person of the owner is not; and, again, that both the person and the property of the person are within, or without, her jurisdiction.

.

The State exercises her jurisdiction over property by seizing it through the officers of her Courts. See Himely v. Rose, 2 Cond. Rep. 28. She exercises her jurisdiction over persons by bringing them before her Courts, through the action of the officers of those Courts, or by notifying them to voluntarily appear. This notice she has not the absolute power to give, except within her own boundaries; and, in point of law, has no right to assume to give it beyond those limits as a ground of claiming the right of exercising jurisdiction. But to residents, or to persons actually within her jurisdictional limits, she has a right to give such notice ■ by the officers of her Courts; and those Courts thus acquire a right to exercise jurisdiction over such persons, by rendering .personal judgment against them. Persons thus notified are not regarded, in law, as constructively, but as actually, summoned to appear. Such notice is given, in legal effect, when a copy of a summons, regularly issued by the proper clerk, in a suit instituted against a person who is a resident of this State, is left by the officer charged with the service of such s.ijmmons, at the then place of residence of such person.' The usual or last place of residence, means the residence, into which the person, still a resident of this State, has dnoved, in this State, last before the service of process. This r^quira-.l ment secures the service at the actual residence of the defendant, in this State, at the time of service. Jf-thfi^efendaat-has^yf’ become a non-resident, service can not be made. As to other acts, aMTImnstituting, in law, such actual notice of suit, see § 35 of the Code of Practice, vol. 2, by G. & H., p. 60, and notes. See, also, Conwell v. Atwood, 2 Ind. 289 . In these cases, the defendant is presumed to have received the notice served. The judgment in this case, then, having been rendered upon actual notice in law, given within the State, • *432 could only be vacated on a case made, bringing it within some.of the statutory provisions giving relief in certain cases from judgments thus rendered. No such case is here presented. See Robertson v. Bergen, 10 Ind. 402 ; and Woolley v. Woolley, 12 Ind. 663 .

W II. Gooinbs, for the appellant. J. A. Fay, for the appellee. Per Guriam.

The judgment is affirmed, with 5 per cent, damages and costs.