A state statute authorizing service of process by publication or
otherwise upon absent and nonresident defendants has no application
to suits
in personam, but is a sufficient authority for
the institution of suits
in rem where, under recognized
principles of law, such suits may be instituted against nonresident
defendants.
Where a statute specifies certain classes of cases which may be
brought against nonresidents, such specification operates as a
restriction and
Page 176 U. S. 399
limitation upon the power of the court; but where the power is a
general one, it is, as respects suits
in rem, subject to
no limitation.
Where service of process was made upon a defendant residing in
Virginia, requiring him to appear and answer a suit in Texas within
five days, it is held that such notice was not a reasonable one,
was not "due process of law"within the Fourteenth Amendment to the
Constitution of the United States, and that a judgment obtained
upon such notice was not binding upon the defendant.
This was an action instituted July 14, 1894, by the plaintiff
Roller in the District Court of Limestone County, Texas, to recover
a judgment against Stephen Holly and William Holly upon five
promissory notes for $228 each, dated January 1, 1890, payable to
plaintiff, for the purchase price of a tract of one hundred and
fourteen acres of land in that county sold by him to them, and also
to foreclose a vendor's lien upon the land to the amount of such
notes.
To this action Joseph Peoples, H. W. Williams, and W. T. Jackson
were also made parties defendant under an allegation that they were
asserting an interest in the land, and a foreclosure of the
vendor's lien was sought as against them. The defendants were all
duly cited; the Hollys failed to answer, but the defendants
Peoples, Williams, and Jackson filed an amended answer at the
January term, 1895, of the court, in which they alleged that the
plaintiff Roller bought the land in question from John W. and Cora
E. Jordan in January, 1887, and gave in part payment therefor his
note for $216.17, due November 1, 1890, in which note as well as in
the deed made to him a vendor's lien was retained; that, before the
maturity of this note, the firm of McClintic & Proctor had
become its owners, and on December 24, 1890, began in the District
Court of Limestone County a suit against the plaintiff for a
foreclosure of the vendor's lien upon the land; that, "after due
service being had," McClintic & Proctor, on January 9, 1891,
recovered a judgment against the plaintiff for $276.65, with
interest and costs of suit, and an order for the foreclosure of the
vendor's lien; that an order of sale was issued, and on March 3,
1891, the land was sold by the sheriff of Limestone County for
$300, and bought by defendant Williams, who paid the amount to the
sheriff, though the defendant Jackson was interested with him
Page 176 U. S. 400
in the purchase, and on May 4, 1891, the two sold the land to
their codefendant, Peoples.
Prayer: that in the event plaintiff recovered the land as
against the defendants Williams, Jackson, and Peoples, they recover
of plaintiff the $300 paid for the land, and that the same be
decreed a lien thereon.
To this amended answer plaintiff filed a first supplemental
petition, consisting of demurrer, exceptions, and answer,
containing --
First. A general denial.
Second. That, at the time of the institution of the suit of
McClintic & Proctor against him, plaintiff was a citizen of the
State of Virginia, and resided in the County of Rockingham, said
state.
That in January, 1890, he sold and conveyed the land in
controversy to Stephen and William Holly by written instrument
signed by him, and took the notes sued on as purchase price of the
land.
That he put his said vendees in possession of the land, and that
they were in possession of the land at the time of the institution
of the McClintic & Proctor suit and had been in possession
since the sale to them, and that neither they nor the Jordans were
made parties to that suit.
That the McClintic & Proctor judgment was void as to
plaintiff, because the District Court of Limestone County, Texas,
never acquired jurisdiction over him nor the property in
question.
That the judgment was not obtained, nor was the sale of the land
made and obtained, by due process of law, but was in contravention
of the Fourteenth Amendment to the Constitution of the United
States.
That service of process on him in the McClintic & Proctor
suit was obtained without the jurisdictional limits of the State of
Texas, to-wit, in the County of Rockingham and State of
Virginia.
That no writ of attachment or other writ was levied on the
land.
Third. That the proceedings in the McClintic & Proctor
Page 176 U. S. 401
suit prior to the judgment and the allegations in the petition
were ineffectual to confer jurisdiction on the District Court of
Limestone County over either the person of plaintiff or the
land.
Fourth. That the time given him in which to answer the suit of
McClintic & Proctor before the actual rendition of their
judgment was not reasonable notice, nor such due and orderly
proceedings, under the facts and circumstances as disclosed by the
record thereon, as the law requires.
Fifth. That the lien attempted to be enforced in the McClintic
& Proctor suit was an equitable lien, created by operation of
law, and there has been no legislation in Texas authorizing such
suit.
Upon an agreed statement of facts, substantially as above,
judgment was rendered by default in favor of plaintiff against the
Hollys for $1,722.66, but the court refused to enforce the vendor's
lien against the land, and gave judgment against plaintiff and in
favor of Williams, Jackson, and Peoples for costs. Plaintiff
appealed to the court of civil appeals, which affirmed the decree
of the district court. 13 Tex.Civ.App. 636. Plaintiff thereupon
applied to the supreme court of the state for a writ of error,
which that court refused; whereupon he sued a writ of error from
this Court.
MR. JUSTICE BROWN, after stating the case, delivered the opinion
of the Court.
Briefly stated, the case is this: Roller, the plaintiff, who was
a resident of Virginia, bought this land in January, 1887; gave a
note in part payment for $216.17, which passed into the hands of
McClintic & Proctor, who brought suit thereon for a personal
judgment against the plaintiff and for the
Page 176 U. S. 402
foreclosure of a vendor's lien upon the land; served plaintiff
with notice of the suit in Virginia, December 30, 1890, to appear
in Texas January 5, 1891, and took judgment against him by default
January 9, 1891, for $276.65, and for a foreclosure of the lien.
Upon a sale in pursuance of this foreclosure, March 3, 1891, the
land was struck off to Williams and Jackson, and by them sold to
Peoples.
Meantime, however, and on January 1, 1890, a year before the
McClintic & Proctor suit was begun, plaintiff sold the land to
the Hollys, who went into possession, and took from them five notes
of $228 each, and also reserved a vendor's lien, which he sought to
foreclose in this suit. Williams, Jackson, and Peoples, who
purchased the land under the sheriff's sale in the McClintic &
Proctor suit, were made parties defendant, and now aver that the
plaintiff's title passed to them, which plaintiff denies upon the
ground that no process was served upon the within the State of
Texas or within a reasonable time before he was required to appear
and answer.
The question in dispute, then, is whether a notice served upon
the plaintiff in Rockingham County, Virginia, December 30, 1890, to
appear in Limestone County, Texas, on January 5, 1891, to answer
the foreclosure suit is due process of law within the meaning of
the Fourteenth Amendment? The Hollys, who bought this land and went
into possession a year before the McClintic & Proctor suit was
begun, were not made parties to that suit, probably because the
deed from the plaintiff to them was not on record in Limestone
County at the time of the institution of the suit, and their rights
are not involved here. It is conceded that the McClintic &
Proctor judgment is invalid as a personal judgment against the
plaintiff under the case of
Pennoyer v. Neff, 95 U.
S. 723,
95 U. S. 24 L.
ed. 569, and other cases in Texas of the same import.
1. The position of the plaintiff that, as there was no statute
in Texas authorizing a suit against a nonresident to enforce an
equitable lien for purchase money, and as there had been no seizure
in rem of the lands, nor any notice to Roller's vendees,
the Hollys, who were in possession, the jurisdiction of the Texas
courts could not attach, and the whole proceeding was void, is
unsound.
Page 176 U. S. 403
In the case of
Hart v. Sansom, 110 U.
S. 151, relied upon in support of this contention, an
action of ejectment was brought against several defendants, who set
up in defense a judgment against the plaintiff as one having some
pretended claim or title to the lands, and other defendants holding
recorded deeds thereof, which were averred to be fraudulent and
void. Plaintiffs in that suit averred that these pretended deeds
and claims cast a cloud upon their title, and that one of the
defendants had ejected them from the lands and withheld possession
from the plaintiffs. Due service was made on the other defendants,
and a citation to Hart, who was a citizen of another state, was
published as directed by the local statutes. All the defendants
were defaulted, and upon a writ of inquiry the jury found that Hart
claimed the land, but had no title by record or otherwise, and
returned a verdict for the plaintiffs upon which judgment was
entered for a recovery of the land, the cancellation of the deeds,
and the removal of the cloud upon the title. It was held that this
judgment was no bar to an action by Hart in the circuit court of
the United States to recover the land against Sansom, who held
under a lease from the plaintiffs in the former suit. We held that
none of that judgment was applicable to Hart, since that part which
was for recovery of possession could not apply to him, as he was
not in possession, and that part which was for the cancellation of
the deeds set up in the petition was a decree
in personam
merely, and could only be supported against a nonresident of the
state by actual service upon him within the jurisdiction of the
state, and that constructive service by publication was not
sufficient. Neither of the plaintiffs, however, was in possession
of the land or claimed a lien thereon.
In
Arndt v. Griggs, 134 U. S. 316, it
was held directly that a state may provide by statute that the
title to real estate within its limits shall be settled and
determined by a suit in which a nonresident defendant is brought
into court by publication. It appeared in that case that a suit had
been begun by a party alleging that he was the owner and
in
possession of the land in controversy, by virtue of certain
tax deeds, against defendants claiming to have some title or
interest in
Page 176 U. S. 404
the lands by patent from the United States, which title, as was
alleged, was divested by the tax deeds, and was unjust,
inequitable, and a cloud upon plaintiff's title, and that the suit
was brought for the purpose of quieting such title. The defendants
were brought in by publication, and a decree entered in favor of
plaintiff quieting his title. The question was whether that decree
was a bar to an action in ejectment between the grantees of the
respective parties to the proceedings to quiet title. In other
words, as put by the court:
"Has a state the power to provide by statute that the title to
real estate within its limits shall be settled and determined by a
suit in which the defendant being a nonresident, is brought into
court only by publication?"
The question was answered in the affirmative. In delivering the
opinion of the Court, MR. JUSTICE BREWER observed:
"The question is not what a court of equity, by virtue of its
general powers and in the absence of a statute, might do, but it is
what jurisdiction has a state over titles to real estate within its
limits, and what jurisdiction may it give by statute to its own
courts, to determine the validity and extent of the claims of
nonresidents to such real estate? If a state has no power to bring
a nonresident into its courts for any purpose by publication, it is
impotent to perfect the titles of real estate within its limits
held by its own citizens, and a cloud cast upon such title by a
claim of a nonresident will remain for all time a cloud unless such
nonresident shall voluntarily come into its courts for the purpose
of having it adjudicated. But no such imperfections attend the
sovereignty of the state. It has control over property within its
limits, and the condition of ownership of real estate therein,
whether the owner be stranger or citizen, is subjection to its
rules concerning the holding, the transfer, liability to
obligations, private or public, and the modes of establishing
titles thereto. It cannot bring the person of a nonresident within
its limits -- its process goes not out beyond its borders -- but it
may determine the extent of his title to real estate within its
limits, and for the purpose of such determination may provide any
reasonable method of imparting notice. . . . Mortgage liens,
mechanics' liens,
Page 176 U. S. 405
materialmen's liens and other liens are foreclosed against
nonresident defendants upon service by publication only. Lands of
nonresident defendants are attached and sold to pay their debts,
and, indeed, almost any kind of action may be instituted and
maintained against nonresidents to the extent of any interest in
property they may have in Kansas, and the jurisdiction to hear and
determine in this kind of cases may be obtained wholly and entirely
by publication."
This case is readily distinguishable from that of
Hart v.
Sansom in the important fact that the plaintiffs in the
judgment set up as a defense in that case were out of possession
while the defendants were in possession, and the action was really
in ejectment with a somewhat superfluous prayer for the
cancellation of all the deeds under which the defendants claimed
title. In
Arndt v. Griggs, the plaintiffs were in
possession, under tax deeds, it is true, but having a
prima
facie valid title which they sought to vindicate against the
former owners.
The substance of these cases is that if the plaintiff be in
possession, or have a lien upon land within a certain state, he may
institute proceedings against nonresidents to foreclose such lien
or to remove a cloud from his title to the land, and may call them
in by personal service outside of the jurisdiction of the court, or
by publication, if this method be sanctioned by the local law.
In suits for the foreclosure of a mortgage or other lien upon
such property, no preliminary seizure is necessary to give the
court jurisdiction. The cases in which it has been held that a
seizure or its equivalent, an attachment or execution upon the
property, is necessary to give jurisdiction, are those where a
general creditor seeks to establish and foreclose a lien thereby
acquired. Of this class,
Cooper v.
Reynolds, 10 Wall. 308, is the most prominent
example. In that case, a plaintiff in an action for false
imprisonment had attached the property of Reynolds in certain
lands, which were sold upon execution to Cooper, who was put in
possession by the sheriff. Reynolds, the original owner, brought
ejectment against him, and it was held by this Court that Reynolds'
title to
Page 176 U. S. 406
the land had been divested by the attachment proceedings, upon
the ground that, in this class of cases, the levy of the attachment
gave the court jurisdiction. But the object of such attachment is
merely to give a lien upon the property which the courts may
enforce, and if a lien already exists, whether by mortgage,
statute, or contract, the court may proceed to enforce the same
precisely as though the property had been seized upon attachment or
execution.
It is true there is no statute of Texas specially authorizing a
suit against a nonresident to enforce an equitable lien for
purchase money, but article 1230 of the Code of Texas, hereinafter
cited, contains a general provision for the institution of suits
against absent and nonresident defendants and lays down a method of
procedure applicable to all such cases. Obviously this article has
no application to suits
in personam, as was held by the
Supreme Court of Texas in
York v. State, 73 Tex 651;
Kimmane v. Houston & Texas Central Railway, 76 Tex.
686;
Maddox v. Craig, 80 Tex. 600, and by this Court in
Pennoyer v. Neff, 95 U. S. 723.
The article must then be restricted to actions
in rem; but
to what class of actions, since none is mentioned specially in the
article? We are bound to give it some effect. We cannot treat it as
wholly nugatory, and as it is impossible to say that it
contemplates a procedure in one class of cases and not in another,
we think the only reasonable construction is to hold that it
applies to all cases where, under recognized principles of law,
suits may be instituted against nonresident defendants. In the case
of
Hollingsworth v.
Barbour, 4 Pet. 466, relied upon by the plaintiff,
a statute of Kentucky authorized suits in chancery against
nonresidents "where any person or persons, their heirs or assigns,
claim land as locator, or by bond or other instrument in writing,"
and as the plaintiff in the case did not claim as locator, it was
held that the court acted without authority and that the decree was
void for want of jurisdiction. Where the statute specifies certain
classes of cases which may be brought against nonresidents, such
specification doubtless operates as a restriction and limitation
upon the power of the court, but where, as in article 1230 of
the
Page 176 U. S. 407
Texas Code, the power is a general one, we know of no principle
upon which we can say that it applies to one class of cases, and
not to another. Unless we are to hold it to be wholly inoperative,
it would seem that suits to foreclose mortgages or other liens were
obviously within its contemplation. In any event, this was the
construction given to it by the court of civil appeals, and
apparently by the supreme court of the state, and is obligatory
upon this Court as a construction of a state statute.
Battle v.
Carter, 44 Tex. 485;
Oswald v. Kampmann, 28 F. 36, a
Texas case;
Martin v. Pond, 30 F. 15.
2. We are therefore remitted to the principal question in
dispute between these parties -- namely, the sufficiency of the
notice given to the plaintiff of the McClintic & Proctor suit.
In this connection, our attention is called to certain articles of
the Texas Code, the first one of which, Art. 1228, Sayles' Texas
Civil Statutes, provides generally for the service of process by
giving five days' notice, exclusive of the day of service and of
the return day. In addition to this there are the following
sections:
"Art. 1230. Where the defendant is absent from the state, or is
a nonresident of the state, the clerk shall, upon the application
of any party to the suit, his agent or attorney, address a notice
to the defendant requiring him to appear and answer the plaintiff's
petition at the time and place of holding of the court, naming such
time and place. Its style shall be 'The State of Texas,' and it
shall give the date of the filing of the petition, the file number
of the suit, the names of all the parties, and the nature of the
plaintiff's demand, and shall state that a copy of the plaintiff's
petition accompanies the notice. It shall be dated and signed and
attested by the clerk, with the seal of court impressed thereon,
and the date of its issuance shall be noted thereon; a certified
copy of the plaintiff's petition shall accompany the notice."
"Art. 1234. Where a defendant has been served with such notice,
he shall be required to appear and answer in the same manner, and
under the same penalties as if he had been personally served with a
citation within this state. "
Page 176 U. S. 408
"Art. 1280. The fifth day of each term of the district court and
the third day of each term of the county court are termed
'appearance days.'"
"Art. 1281. It shall be the duty of the court on appearance day
of each term, or as soon thereafter as may be practicable, to call
in their order all cases on the docket which are returnable in such
term."
"Art. 1340. Judgments for the foreclosure of mortgages and other
liens shall be that the plaintiff recover his debt, damages, and
costs, with a foreclosure of the plaintiff's lien on the property
subject thereto, and (except in judgments against executors,
administrators, and guardians) that an order of sale shall issue to
the sheriff or any constable of the county where such property may
be, directing him to seize and sell the same as under execution, in
satisfaction of the judgment, and if the property cannot be found,
or if the proceeds of such sale be insufficient to satisfy the
judgment, then to make the money, or any balance thereof remaining
unpaid, out of any other property of the defendant, as in case of
ordinary executions."
From these requirements it appears that the time for service of
process in the courts of Texas was five days, exclusive of the day
of service and return, and that there is no distinction in this
particular between defendants living in the town where the court is
sitting and defendants living in other states, or even in a foreign
country. In short, for aught that appears here, parties may be
called from the uttermost parts of the earth to come to Texas and
defend suits against them within five days from the day the notice
is served upon them. In the case under consideration, it is
admitted that the defendant was served with notice on December 30,
1890, at Harrisonburg, Rockingham County, Virginia, to appear on
January 5, 1891, at Groesbeck, Limestone County, Texas; that it
would have required four days of constant traveling to reach
Groesbeck, giving the plaintiff but one day, and that a Sunday, to
make preparations to comply with the exigencies of the notice. This
estimate, too, makes no allowance for accidental delays in transit.
It is true that, by articles 1280 and 1281, the case could not have
been called for trial or default until the fifth day
Page 176 U. S. 409
of the term, January 9, and that Roller's default was not
actually taken and judgment entered until that day. But, as a
citizen of Virginia, he was not bound to know the practice of the
Texas courts in that particular, and was at liberty, even if he
were not compelled, to construe the notice as it read upon its
face. Very probably, too, the court which rendered the judgment
would have set the same aside and permitted him to come in and
defend, but that would be a matter of discretion -- a contingency
he was not bound to contemplate. The right of a citizen to due
process of law must rest upon a basis more substantial than favor
or discretion.
That a man is entitled to some notice before he can be deprived
of his liberty or property is an axiom of the law to which no
citation of authority would give additional weight; but upon the
question of the length of such notice, there is a singular dearth
of judicial decision. It is manifest that the requirement of notice
would be of no value whatever unless such notice were reasonable
and adequate for the purpose.
Davidson v. New Orleans,
96 U. S. 97;
Hagar v. Reclamation District, 111 U.
S. 701,
111 U. S. 712.
What shall be deemed a reasonable notice admits of considerable
doubt. In the case of a witness subpoena, the command of the writ
is that the party served shall lay aside all his business and
excuses and make his way to the court with the utmost dispatch, or
at least present himself upon the return day of the writ. An
ordinary summons, however, to answer the suit of a private
individual contemplates that the party served may have other
business of equal or greater importance engaging his attention, or
may require time for the retainer of counsel and the preparation of
his defense.
In 2 Chitty's General Practice 175, it is said in reference to
summary proceedings before justices of the peace:
"The time appointed must always allow sufficient opportunity,
between the service of the summons and the time of appearance, to
enable the party to prepare his defense and for his journey, and
the justice should in this respect take care to avoid any
supposition of improper hurry, or he may incur the censure of Court
of King's Bench, if not be subject to a criminal information.
Page 176 U. S. 410
The precise time will generally depend on distance and the other
circumstances of each particular case. With analogy to other
branches of the law, a man should not be required,
omissis
omnibus aliis negotiis, instantly to answer a charge of a
supposed offense necessarily less than an indictable misdemeanor,
on the same or even the next day, and should be allowed not only
ample time to obtain legal advice and assistance, but also to
collect his evidence, and even the convenience of witnesses should
be considered, and therefore, in general, several days should
intervene between the time of summons and hearing. In the superior
courts, in general, at least eight days' notice of inquiry and of
trial are essential for the preparation of the defense."
In vol. 2, page 144, it is said that the ancient practice was
that a person residing at a considerable distance from a metropolis
should be allowed more time for performing the act than a person
within, or near, the metropolis, but that there is now no
distinction between an arrest on process in London or Yorkshire,
and in each case the defendant must appear or put in bail within
eight days after the date of service or arrest. This, considering
the small area of the kingdom and the rapid means of
transportation, seems just and reasonable.
While, as before stated, there is but little in the way of
judicial authority upon the question in the statutes of the several
states regulating proceedings against absent and nonresident
defendants, there is a consensus of opinion, which is entitled to
great weight in passing upon the question of the reasonableness of
such notice.
In the act of Congress providing for the enforcement of liens
upon property as against nonresidents, Rev.Stat. § 738, the court
is required to make an order fixing a day certain, which shall be
served on the absent defendant wherever found, or, if personal
service be impracticable, such order shall be published once a week
for six consecutive weeks, with a proviso that if there be no
personal service, he shall have one year after final judgment to
enter his appearance and set aside the judgment. The same proviso
allowing the court to fix the time of appearance is found in the
statutes of Massachusetts, New Hampshire, Pennsylvania, Alabama,
Maryland, and Virginia.
Page 176 U. S. 411
By the sixth rule of this Court, a party moving to dismiss must
give a notice of at least three weeks, and where counsel to be
notified reside west of the Rocky Mountains, a notice of at least
thirty days.
By the Code of Civil Procedure of New York, sec. 440, the judge
is required to make an order for publication once a week for six
successive weeks, and in addition thereto the plaintiff, on or
before the day of the first publication, is bound to mail a copy of
the summons, complaint, and order for appearance to the nonresident
defendant. By sec. 2525, citations from surrogate's courts must be
served on nonresidents at least thirty days before the return
day.
By the General Statutes of Vermont (1894), §§ 1641, 1643,
nonresident defendants (served out of the state) are entitled to at
least twenty days' notice before the time when they are required to
appear.
By the practice in Michigan, the court orders the absent or
nonresident defendant to appear in not less than three months, if
he be a resident of the state, absent or concealed, and if a
resident of some other of the United States or of the British
provinces, in not less than four months, and if a resident of any
foreign state, in not less than five months from the date of making
the order, and if the order be not published for six successive
weeks, defendant shall be personally served at least twenty days
before the time prescribed for his appearance. 2 Howell's Statutes
§§ 6670, 6671, and 6672.
By the Revised Statutes of Illinois (1899), chapter 22, § 14,
there must be either publication or a personal service upon the
nonresident defendant "not less than thirty days previous to the
commencement of the term at which such defendant is required to
appear."
By the General Statutes of New Jersey (1895), Vol. 1, page 405,
the chancellor may order the nonresident defendant to appear not
less than one nor more than three months from the date of the
order; "of which order such notice as the chancellor shall by rule
direct shall, within ten days thereafter, be served personally on
such defendant," or be published for four weeks. This gives the
defendant at least twenty days' personal notice.
Page 176 U. S. 412
By the General Statutes of Arkansas (1894), §§ 5677, 5678, a
nonresident defendant is entitled to a copy of the complaint and
the summons warning him to appear and answer "within sixty days
after the same shall have been served on him."
By the Code of Georgia (1895), § 4979, the party obtaining an
order for the appearance of a nonresident defendant shall file in
the office of the clerk, at least thirty days before the term next
after the order for publication, a copy of the newspaper in which
said notice is published, which the clerk is required to at once
mail to the party named in the order; and, by § 4980, the judge is
required to determine whether the service has been properly
perfected.
By the Revised Statutes of Florida (1892), § 1413, the clerk
must publish the order for the appearance of a nonresident
defendant once a week for four consecutive weeks, and also, within
twenty days after the making of the order, mail a copy to the
defendant, if his residence be shown by the bill or affidavit.
By the Code of Montana (1895), § 638, publication must be made
for four successive weeks, and, where the residence of the
defendant is known, the clerk must forthwith deposit a copy of the
summons and complaint in the post office, directed to the person to
be served at his place of residence. A similar practice also
obtains in California.
By the General Statutes of Mississippi (1892), § 3432,
publication may be dispensed with if the summons be served upon the
absent party at least ten days before the return day. This is the
shortest length of notice to be found in any of the statutes.
By the Code of Oregon (1892) sec. 57, in case of publication,
which must be not less than once a week for six weeks, the court or
judge shall also direct a copy of the summons and complaint to be
forthwith deposited in the post office, addressed to the defendant,
if his place of residence be known, and "in case of personal
service out of the state, the summons shall specify the time
prescribed in the order for publication."
It may be said in general with reference to these statutes that
in cases of publication, notice is required to be given at
Page 176 U. S. 413
least once a week for from four to eight weeks, and in case of
personal service out of the state, no notice for less than twenty
days between the service and return day is contemplated in any of
the states except Mississippi, where a personal notice of ten days
seems to be sufficient. While, of course, these statutes are not
obligatory here, they are entitled to consideration as expressive
of the general sentiment of legislative bodies upon the question of
reasonableness of notice.
Without undertaking to determine what is a reasonable notice to
nonresidents, we are of opinion, under the circumstances of this
case and considering the distance between the place of service and
the place of return, that five days was not a reasonable notice, or
due process of law; that the judgment obtained upon such notice was
not binding upon the defendant Roller, and constitutes no bar to
the prosecution of this action.
The judgment of the Court of Civil Appeals affirming the
judgment of the District Court of Limestone County must therefore
be reversed, with instructions to remand the case to that court for
further proceedings not inconsistent with this opinion.
THE CHIEF JUSTICE and MR. JUSTICE BREWER dissented from this
opinion.