While an essential element of due process of law is opportunity
to be heard, a necessary condition of which is notice,
Simon v.
Craft, 182 U. S. 427,
personal notice is not always necessary.
Ballard v.
Hunter, 204 U. S. 241.
In this case,
held that the proceedings for service by
publication show sufficient inquiry was made to ascertain the
whereabouts of the persons to be served and who were served by
publication under provisions of § 412 of the Code of Civil
Procedure of California, and that due process of law was not denied
by service in that manner.
154 Cal. 307 affirmed.
The facts, which involve the question of whether due process of
law was afforded by substituted service of process under the
statutes of California, are stated in the opinion.
Page 223 U. S. 263
MR. JUSTICE McKENNA delivered the opinion of the Court.
The question involved is whether a judgment quieting title to a
piece of land in California, against plaintiffs in error, upon
substituted process of the publication of the summons under the
statutes of that state, constitutes due process of law under the
Fourteenth Amendment to the Constitution of the United States.
The judgment was rendered in 1897, and eight years afterwards
the entry of judgment was set aside by the trial court upon
petition of plaintiffs in error on the ground that the facts set
out in the affidavit for the order of publication did not show the
due diligence required by § 412 of the Code of Civil Procedure of
the state. The order was reversed by the supreme court of the
state. 154 Cal. 307.
The action against plaintiffs in error was brought by defendant
in error in the Superior Court in the County of San Diego, State of
California, by verified complaint on March 25, 1897, upon which
summons was issued and returned not served because defendants in
the action (plaintiffs in error) could not be found. An amended
complaint was filed April 3, 1897. It described the land as lots in
the City of San Diego, of which it alleged that the plaintiffs,
defendants in error here, were then and had been for a long time in
possession, claiming title in fee. It also contained the usual
allegations that the defendants, and each of them, claimed some
estate or interest in the land, and that it was entirely without
any right whatever. It was prayed that the defendants be required
to set forth the nature of their or his claim, that it be
determined by the decree of the court, and that they and each of
them be forever enjoined from asserting any claim in and to the
lands adverse to the plaintiffs. General relief was prayed.
Summons was issued, and the sheriff's certificate of return
Page 223 U. S. 264
recited that, "after diligent search and inquiry," he was unable
to find the "defendants or either or any of them in this, San
Diego, County."
An affidavit for publication of summons was then presented to
the court and filed. It recited the proceedings, including the
issue of the summons and its return by the sheriff, as we have
stated, and further set forth the following, among other
matters:
"That the cause of action is fully set forth in his verified
complaint on file herein; that said defendants, or either or any of
them, after due diligence, cannot be found within this state, and
this affiant, in support thereof, states the following facts and
circumstances:"
"That affiant, for the purpose of finding said defendants and
ascertaining their place of residence, has made due and diligent
inquiry of the old residents of the City of San Diego, the former
neighbors of said defendants, and is informed by D. Choate, who has
lived in the City of San Diego over twenty-five years, that he
thinks the defendants are not within the State of California, and
he does not know of their residence, and has not heard anything of
them, or either of them, or of their residence or post office
address, for more than twenty years, and this affiant is informed
by George W. Hazzard, who has lived in San Diego for over
twenty-five years, that he has no knowledge as to the whereabouts
of the said defendants, or either of them. Plaintiff also made
inquiry of Ed. Dougherty, who is an old resident of San Diego, and
said Ed. Dougherty informed plaintiff that he did not know the
address or residence, or where the defendants, or either of them,
could be found, and did not believe that they were in the
state."
The affidavit also stated that inquiry was made of certain
county and city officers, and that they all
"stated to affiant that they did not know the residence of the
defendants, or either of them, their post office
Page 223 U. S. 265
address, or where they could be found, and none of the
above-named parties had heard of the post office address or
residence of the defendants, or either of them, since they have
resided in the said City of San Diego."
"The affiant has made other diligent inquiry to find said
defendants, or either or any of them, and has not been able to find
them or any of them within ___. The affiant has no knowledge of the
residence or post office address of the defendants or either of
them, or where the defendants, or either of them, could be found.
This affiant therefore says that personal service of said summons
cannot be made on the defendants, Thomas E. Jacob, Thomas Hobson,
Edward Hobson, Jacob Hobson, and Frank Hobson, either or any of
them."
An order of publication was duly made, and the summons duly
published in accordance therewith. Judgment by default was
subsequently duly entered.
The assignments of error all express the contention that the
trial court was without jurisdiction to render the judgment against
plaintiffs in error, and that hence their property has been taken
without due process of law.
Undoubtedly, as contended by plaintiffs in error, the essential
element of due process of law is an opportunity to be heard, and a
necessary condition of such opportunity is notice.
Simon v.
Craft, 182 U. S. 427. But
personal notice is not in all cases necessary. There may be, and
necessarily must be, some form of constructive service.
Ballard
v. Hunter, 204 U. S. 241.
Upon this, however, we do not enlarge, as we do not understand
plaintiffs in error contest it. They recognize that substituted
service of judicial process may be authorized, but they contend
that it can only be authorized when
"it is impossible or impractical to obtain actual service, and
when so authorized, the substituted service provided for in the
statute must be of such character that it will be reasonably
probable that the party whose property is placed in jeopardy
Page 223 U. S. 266
will be apprised of the pendency of the action and will be
afforded a
reasonable opportunity to appear therein and
make his defenses."
(The italics are ours.) We do not understand that plaintiffs in
error attack the kind or time of publication as not giving a
reasonable probability of notice or opportunity to be heard, but
attack the showing upon which it was made -- in other words, that
the showing was not sufficient to authorize the publication of
notice, the showing not being legally sufficient to justify a
resort to that form of notice. It is true plaintiffs in error say
that
"the designation of the newspaper and the length of time of
publication must necessarily depend upon the residence of the
defendant, or at least his probable whereabouts, unless it is
disclosed by the affidavit that plaintiff has no knowledge on the
subject, and that he has exercised due diligence to inform
himself."
These quotations from the argument of plaintiffs in error we
make as exhibiting the elements of their contentions.
We make no reference to the statute of the state, as that, as
written, is not attacked except, it may be, as it is applied by the
supreme court of the state in this and prior decisions. We say
"prior decisions" because the court puts its ruling explicitly on
one of its prior decisions, and rejects the contention that it had
overruled other decisions.
We now turn to what the papers in the case exhibit and what they
explicitly or impliedly establish. The property involved were lots
in the City of San Diego, of which the plaintiffs in the action,
defendants in error here, were in possession at the time of
commencing the action, and had been for a long time. The fact has
some force. San Diego was of size and importance enough to make it
worthwhile for those having interest in property to assert it.
Plaintiffs in error, however, permitted defendants in error to be
in possession of property which they now say was and is theirs.
Why, they do not explain, nor
Page 223 U. S. 267
where they were. They rest upon the face of the papers, and they
having that right, we will consider the sufficiency of the papers
under the statute.
We have set out the affidavit. It shows inquiry of the
whereabouts of plaintiffs in error of their former neighbors and
other residents of San Diego. One of them replied that he had not
heard of them, of their residence or post office address, for over
twenty-five years. Another also had not heard from them, and did
not believe they were in the state. Inquiry was also made of
nineteen county officers and three state officers, sheriffs, county
clerks, tax collectors, county and state; assessors, county and
state, and of the postmasters of the state. Neighbors, residents,
and officers who in the intercourse and business of life would
almost necessarily come in contact with plaintiffs in error or hear
from them had no knowledge of them. It may, however, be said, and
indeed is said, that other parts of the state were not searched,
and that this was necessary, as the process of the court could run
to every county in the state. The requirement is extreme, and we
are cited to no cases in which it is decided to be necessary. The
affidavit shows, besides, that defendant in error made diligent
inquiry to find plaintiffs in error, and had no knowledge of their
residence or post office address, or of either of them, or where
they or either of them could be found.
We think plaintiffs in error were afforded due process.
Judgment affirmed.