Where the trial court did not infringe any federal right of
plaintiff in error, but the decision of the appellate court ran
counter to the alleged federal right which was raised on petition
for reargument and specifically passed on and overruled in refusing
the reargument, this Court has jurisdiction under § 237, Judicial
Code, to review the judgment.
In determining what is due process of law within the meaning of
the Fourteenth Amendment, there is a distinction between actions
in personam and actions
in rem; in the former,
judgments without personal service within the state are devoid of
validity either within or without the state, but in the latter, the
judgment, although based on service by publication, may be valid so
far as it affects property within the state.
Pennoyer v.
Neff, 95 U. S. 714.
Where a state has jurisdiction over the
res, the
judgment of the court to which that jurisdiction is confided, in
order to be binding with respect to the interest of a nonresident
not served with process within the state, must be based upon
constructive service by mailing, publication, or otherwise in
accordance with the law of the state.
This Court must exercise an independent judgment as to whether
the process sanctioned by the court of last resort of the state
constituted due process of law; it is not bound by, nor can it
merely accept, the decision of the state court on that
question.
While the fundamental requisite of due process of law is the
opportunity to be heard, that does not impose an unattainable
standard of accuracy, and a defendant served with process either
personally, or by publication and mailing, in which his name is
misspelled cannot safely ignore it on account of the misnomer.
The general rule in cases of constructive service of process by
publication tends to strictness, but even in names, due process of
law does not require ideal accuracy.
In constructive service of process by publication and mailing,
where
Page 234 U. S. 386
there has been a misnomer, neither the test of
idem
sonans nor that of substantial similarity in appearance in
print is the true one, but whether the summons, as published and
mailed, complies with the law of the state so as to give sufficient
constructive notice to the party misnamed.
In this case,
held that a summons in an action of
foreclosure, served by publication and mailing and otherwise in
strict compliance with the state statute, did not deprive a
defendant of his property without due process of law because his
name was misspelled Albert Guilfuss, Assignee, in the various
papers instead of correctly, Albert B. Geilfuss, Assignee.
118 Minn. 117 affirmed.
The facts, which involve the validity under the due process
provision of the Fourteenth Amendment of a judgment based on
service by publication in which the name of the defendant was
misspelled, are stated in the opinion.
MR. JUSTICE PITNEY delivered the opinion of the Court.
These two cases were heard as one, upon the record in No. 325,
it being stipulated that, since the cases are identical in their
facts and in the questions raised, except that they pertain to
different portions of the land respecting which the controversy
arises, the decision in No. 326 shall abide the result in No. 325.
We shall therefore discuss the record in the latter case, without
further mention of No. 326.
On the 8th day of November, 1895, and for some time prior
thereto, one John McKinley was the owner of an undivided fifth part
of certain lands in the County of St. Louis, in the State of
Minnesota. Prior to that
Page 234 U. S. 387
time, one Albert B. Geilfuss, Assignee, recovered a judgment for
the sum of $2,854.02 against McKinley in the district court of that
county, which was duly entered in the judgment book and appeared in
the judgment roll in the name of Albert B. Geilfuss, Assignee, and
on the fifth day of January, 1894, was docketed by the clerk of the
court as in favor of Albert Geilfuss, Assignee, as judgment
creditor, and against John McKinley as judgment debtor, and being
so docketed, became a lien upon McKinley's interest in said lands,
and on November 8, 1895, was a lien thereon. Under a sale
afterwards made upon an execution issued on this judgment,
plaintiff in error claims title to the undivided one-fifth of said
lands formerly owned by McKinley, by virtue of certain proceedings
and conveyances hereinafter mentioned. Albert B. Geilfuss,
Assignee, recovered another judgment against McKinley for the sum
of $2,125.60, which was duly entered and docketed on January 10,
1894, and became a lien upon the interest of McKinley in the same
lands, but plaintiff in error claims no rights thereunder.
On November 8, 1895, one George A. Elder, the owner of an
undivided fifth interest in said lands, commenced a partition suit
in the District Court of St. Louis County against Mesaba Land
Company, John McKinley, and the other owners of the fee, and also
against certain other parties having judgment or other liens. The
suit was brought under the provisions of Chapter 74, Gen.Stat.
Minnesota, and its sole purpose was to partition the lands, or, in
case a partition could not be had, then to have them sold and the
proceeds of the sale distributed among the parties entitled.
At the time of the partition action, Albert B. Geilfuss assignee
resided at Milwaukee, Wisconsin. His correct name, "Albert B.
Geilfuss, Assignee," or "Albert Geilfuss, Assignee," did not appear
among the names of the defendants in the action, or in the summons
or other files
Page 234 U. S. 388
or records therein. "Albert Guilfuss, Assignee," was named as a
defendant, and it was alleged in the complaint, and found and
determined in the findings and judgment, that he was the owner of
the judgment for $2,854.02 against McKinley. "Albert B. Guilfuss"
was also named as a defendant, and it was alleged in the complaint
and found and determined in the findings and judgment that he was
the owner of the judgment for $2,125.60 against McKinley. There was
no personal service of the summons in the partition action upon
Geilfuss, however named, either as individual or as assignee, and
no appearance in his behalf. There was a return by the sheriff of
St. Louis county upon the summons to the effect that the
defendants, "Albert Guilfuss, Assignee," and "Albert B. Guilfuss"
could not be found in the county, and an affidavit of one of the
attorneys of plaintiff was filed, stating that he believed that the
defendants "Albert Guilfuss, Assignee," and "Albert B. Guilfuss,"
were not residents of the State of Minnesota, and could not be
found therein, and that, after the commencement of the action,
affiant had deposited copies of the summons in the post office,
with postage prepaid, directed to each of these defendants at their
respective places of residence; to-wit, one to Albert Guilfuss,
Assignee, Milwaukee, Wisconsin, and one to Albert B. Guilfuss,
Milwaukee, Wisconsin, and stating that the subject of said
partition action was certain real property situated in the County
of St. Louis and State of Minnesota, and that each of said
defendants had and claimed a lien and interest in said real estate,
and that the relief demanded in said action consisted in excluding
the defendants and each of them from any interest or lien therein.
There was also service of the summons by publication upon the
defendants named therein as "Albert Guilfuss, Assignee," and
"Albert B. Guilfuss," the summons being published in a legal
newspaper in Duluth, which is in St. Louis County, Minnesota. It is
admitted
Page 234 U. S. 389
that (saving the effect of the misnomer), the statutory
provisions respecting the service of summons upon nonresidents by
mailing and publication were complied with. These are contained in
Minnesota Statutes 1894, §§ 5204 and 5205 (respecting civil
actions), and in §§ 5771 and 5773 (respecting actions for partition
of real property).
*
Page 234 U. S. 390
All of the defendants in the action were properly served with
summons, except as mentioned, and, in due course, a judgment was
entered on May 5, 1899, adjudging and decreeing the ownership of
the lands, and that they could not be divided and partitioned, and
ordering that they be sold by a referee to the highest bidder, and
the proceeds distributed among the defendants according to their
respective rights under the law. The sale was made accordingly and
confirmed by the court, and thereafter the present defendants in
error, by mesne conveyances, acquired such interest in the lands as
had been acquired by the purchaser under the referee's sale.
Subsequently the Geilfuss judgment against McKinley, docketed
January 5, 1894, for the sum of $2,854.02, was assigned to one
Timlin, and by him to one Buell, and whatever interest in the land,
if any, remained in McKinley after the partition sale, was sold
under execution and purchased by Buell, and subsequently acquired
through mesne conveyances by the present plaintiff in error.
This action (No. 325) was brought by defendants in error to
determine the adverse claims in the lands. The trial resulted in a
judgment to the effect that the plaintiffs
Page 234 U. S. 391
were the owners of an undivided four-fifths interest, and that
the present plaintiff in error was the owner of the undivided fifth
interest which had been the property of McKinley. Upon appeal, the
supreme court reversed the judgment so far as it adjudged plaintiff
in error to be the owner of McKinley's interest. 118 Minn. 117. By
the present writ of error, we are called upon to determine whether
the Supreme Court of Minnesota, by its judgment giving effect to
the decree in the partition suit, notwithstanding the misnomer of
Albert B. Geilfuss, Assignee, in the proceedings and summons, has
deprived plaintiff in error of his property without due process of
law contrary to the Fourteenth Amendment.
The trial court held that no jurisdiction was acquired in the
partition suit over the judgment lien of Albert B. Geilfuss,
Assignee, and the supreme court declared that, if this were
correct, the lien of his judgment upon the McKinley interest was
not affected by the decree in that action, and that the subsequent
sale of that interest under execution on the judgment gave a good
title to the purchaser, under whom defendant (now plaintiff in
error) claims, while, on the other hand, if the court acquired
jurisdiction over that judgment lien, the McKinley interest in the
lands passed to the purchaser at the partition sale, and afterwards
became the property of plaintiffs (now defendants in error). This
was upon the assumption that the court had jurisdiction to decree a
sale in the partition action -- a question of state law arising out
of facts not here pertinent, and to which an affirmative answer was
given in the same opinion.
The precise question now presented therefore is whether, under
the circumstances, a service by the publication and mailing of a
summons in the partition suit, naming as party and addressee
"Albert Guilfuss, Assignee," and "Albert B. Guilfuss," constituted
due process of law, conferring jurisdiction to render a judgment
binding
Page 234 U. S. 392
upon Albert B. Geilfuss, Assignee, with respect to his lien upon
or interest in the land, he not having appeared.
There is a motion to dismiss upon the ground that the federal
question was not properly raised in the state court. This motion
must be denied. It is true that, until the decision of the supreme
court of the state, the federal right was not clearly asserted. But
it was not infringed in the trial court, which held in favor of the
contention of defendant (now plaintiff in error) that the decree in
the partition suit was not valid because of the insufficiency of
the notice to Geilfuss. It was the decision of the supreme court,
upholding the notice, that first ran counter to the alleged federal
right. In a petition for reargument, filed by the now plaintiff in
error, it was suggested that the necessary effect of the decision
was to deprive him of his property without due process of law,
contrary to the Fourteenth Amendment. The supreme court entertained
the petition, considered and overruled the contention that
petitioner's rights under the Amendment were infringed, declared
that its decision was to be interpreted as holding against the
contention, and therefore refused a reargument. This is sufficient
to confer jurisdiction upon this Court.
Mallett v. North
Carolina, 181 U. S. 589,
181 U. S. 592;
Leigh v. Green, 193 U. S. 79,
193 U. S. 85;
McKay v. Kalyton, 204 U. S. 458,
204 U. S. 463;
Sullivan v. Texas, 207 U. S. 416,
207 U. S. 422;
Kentucky Union Co. v. Kentucky, 219 U.
S. 140,
219 U. S.
158.
We therefore proceed to the merits.
In determining what is due process of law within the meaning of
the Fourteenth Amendment, a distinction is to be observed between
actions
in personam and actions
in rem, or
quasi in rem. In
Pennoyer v. Neff, 95 U. S.
714,
95 U. S. 733,
it was held that, by force of the Amendment, a judgment rendered by
a state court in an action
in personam against a
nonresident served by publication of summons, but upon whom no
service of process within the
Page 234 U. S. 393
state was made, and who did not appear to the action, was devoid
of any validity, either within or without the territory of the
state in which the judgment was rendered, it being, however,
conceded that a different rule obtains where, in connection with
initial process against a person, property in the state is brought
under the control of the court and subjected to its disposition, or
where the judgment is sought as a means to reach such property or
affect some interest in it -- in other words, where the action is
in the nature of a proceeding
in rem. As was said by the
court (speaking by Mr. Justice Field, p.
95 U. S.
734):
"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."
But it is also settled that, where a state has jurisdiction over
a
res -- as, of course, it has over the partition of lands
lying within its borders -- the judgment of the court to which that
jurisdiction is confided, in order to be binding with respect to
the interest of a nonresident who is not served with process within
the state, must be based upon constructive notice given by
publication, mailing, or otherwise, substantially in the manner
prescribed by the law of the state.
Cheely v. Clayton,
110 U. S. 701,
110 U. S. 705;
Guaranty Trust Co. v. Green Cove Railroad, 139 U.
S. 137,
139 U. S. 148;
Windsor v. McVeigh, 93 U. S. 274,
93 U. S. 283;
Hassall v. Wilcox, 130 U. S. 493,
130 U. S. 504;
Thompson v. Thompson, 226 U. S. 551,
226 U. S.
562.
Page 234 U. S. 394
In the case before us, there is no disputed question as to what
steps were taken in order to give notice to Geilfuss of the
partition suit. The supreme court of the state, in accepting what
was done as being a sufficient compliance with the provisions of
the statute, in effect construed the statute as permitting such
notice to be given as was in fact given.
But, the question whether the process thus sanctioned by the
court of last resort of the state constitutes due process of law
within the meaning of the Fourteenth Amendment being properly
presented to this Court for decision, we must exercise an
independent judgment upon it.
Scott v. McNeal,
154 U. S. 34,
154 U. S. 45;
Ballard v. Hunter, 204 U. S. 241,
204 U. S. 260;
Jacob v. Roberts, 223 U. S. 261.
The fundamental requisite of due process of law is the
opportunity to be heard.
Louisville & Nashville R. Co. v.
Schmidt, 177 U. S. 230,
177 U. S. 236;
Simon v. Craft, 182 U. S. 427,
182 U. S. 436.
And it is to this end, of course, that summons or equivalent notice
is employed. But the inherent authority of the states over the
titles to lands within their respective borders carriers with it,
of necessity, the jurisdiction to determine rights and interests
claimed therein by persons resident beyond the territorial limits
of the state, and upon whom the ordinary judicial process cannot be
served. The logical result is that a state, through its courts, may
proceed to judgment respecting the ownership of lands within its
limits, upon constructive notice to the parties concerned who
reside beyond the reach of process. That this constitutes "due
process" within the meaning of the Fourteenth Amendment was
recognized in
Pennoyer v. Neff, supra, and is no longer
open to question.
Huling v. Kaw Valley Railway,
130 U. S. 559,
130 U. S. 563;
Arndt v. Griggs, 134 U. S. 316,
134 U. S. 320
et seq.; Lynch v. Murphy, 161 U.
S. 247,
161 U. S. 251;
Roller v. Holly, 176 U. S. 398,
176 U. S. 403.
It is not disputed that the statutory scheme of publication and
mailing, as established in
Page 234 U. S. 395
Minnesota, for giving notice to nonresident defendants in
actions
quasi in rem, is, in its general application,
sufficient to comply with the Fourteenth Amendment. But the statute
provides that "the summons shall be addressed by name to all the
owners and lien holders who are known," and the contention is that
the mistake of name in the present instance was fatal.
The "due process of law" clause, however, does not impose an
unattainable standard of accuracy. If a defendant within the
jurisdiction is served personally with process in which his name is
misspelled, he cannot safely ignore it on account of the misnomer.
The rule, established by an abundant weight of authority, is that
if a person is sued by a wrong name, and he fails to appear and
plead the misnomer in abatement, the judgment binds him.
Lafayette Ins. Co. v.
French, 18 How. 404,
59 U. S. 409;
Crawford v. Statchwell, 2 Strange, 1218;
Oakley v.
Giles, 3 East, 167;
Smith v. Patten, 6 Taunt, 115,
s.c. 1 Marsh. 474;
Smith v. Bowker, 1 Mass. 76, 79;
Root v. Fellowes, 6 Cush. 29;
First Nat'l Bank v.
Jaggers, 31 Md. 38, 47;
McGaughey v. Woods, 106 Ind.
381;
Vogel v. Brown Township, 112 Ind. 299;
Lindsey v.
Delano, 78 Ia. 350, 354;
Hoffield v. Board of
Education, 33 Kan. 644, 648.
Of course, in a published notice or summons, intended to reach
absent or nonresident defendants, where the name is a principal
means of identifying the person concerned, somewhat different
considerations obtain. The general rule, in cases of constructive
service of process by publication, tends to strictness.
Galpin v.
Page, 18 Wall. 350,
85 U. S. 369,
85 U. S. 373;
Priest v. Las Vegas, 232 U. S. 604.
But, even in names, "due process of law" does not require ideal
accuracy. In the spelling and pronunciation of proper names there
are no generally accepted standards, and the well established
doctrine of
idem sonans -- generally applied,
Page 234 U. S. 396
as it is, to constructive notice of suits -- is a recognition of
this.
The trial court was of the opinion that the question turned upon
whether "Guilfuss" and "Geilfuss" were
idem sonans, and
held that, since "Geilfuss" is evidently a German name, the first
syllable must be pronounced with the long sound of "i," while the
first syllable of "Guilfuss" would necessarily be pronounced with
the short sound of "i." The court therefore concluded that the
names were not
idem sonans, and that the difference was
fatal. The supreme court agreed that "Geilfuss" and "Guilfuss" were
not
idem sonans, but held that this was not the proper
test; that, where a summons is served by publication, the true test
is not whether the names sound the same to the ear when pronounced,
but whether they look substantially the same in print (following
Lane v. Innes, 43 Minn. 137, 143;
D'Autremont v.
Anderson Iron Co., 104 Minn. 165), and assuming that the name
of the judgment creditor of McKinley was Albert B. Geilfuss,
Assignee, the court said:
"The question then is, placing the names 'Albert Guilfuss,
Assignee,' and 'Albert B. Geilfuss, Assignee,' in juxtaposition,
was there so material a change as to be misleading?"
This was answered in the negative.
Were we to theorize, we might say that, while each of these
tests is helpful, neither is altogether acceptable if perfect
accuracy were the aim; not the test of
idem sonans,
because it does not appear that all persons would necessarily
pronounce Geilfuss with the long "i," or Guilfuss with the short
"i;" and not the test of the appearance of the names as printed and
placed in juxtaposition, because in fact as the name appeared in
the summons published and mailed, it was "Guilfuss" alone, without
any name in juxtaposition to serve as a standard for comparison.
And we think both tests are inadequate if applied without regard to
what was contained in the summons besides the mere name and
addition-- "Albert Guilfuss, Assignee."
Page 234 U. S. 397
The record, as it happens, contains no copy of the summons, but
from findings and admissions that are in the record, we know that
it was in due form, and therefore that it contained such notice of
the commencement of the action and of its purpose, and such warning
to appear and answer, as would constitute due process of law if
served upon a defendant within the jurisdiction (Minnesota Stats.,
1894, §§ 5194, 5195), and that it contained,
inter alia, a
brief description of the property sought to be divided (Minnesota
Stats., 1894, § 5773, marginal note,
supra). The
underlying question is a practical one -- whether, notwithstanding
the misnomer, the summons as published and mailed, being otherwise
unexceptionable, constitutes a substantial compliance with the
Minnesota statute and sufficient constructive notice to the party
concerned. In determining this, we need not confine ourselves to
the test of
idem sonans, nor to the appearance of the name
in print, but may employ both of these, with such additional tests
as may be available in view of what is disclosed by the record. One
such additional test, we think, is whether, when two letters
reached the post office at Milwaukee, one addressed "Albert
Guilfuss, Assignee," the other addressed "Albert B. Guilfuss," they
or either of them would, in reasonable probability, be delivered to
Albert B. Geilfuss, then a resident of that city. Another is
whether, assuming that the summons as so mailed, or as published in
Duluth, and containing the misspelled names or either of them, had
come to the eye of the veritable Albert B. Geilfuss, or of any
person knowing him by that name, and sufficiently interested in him
to acquaint him with its contents if apprised that it was intended
for him, the summons, as a whole, would probably have conveyed
notice that Albert B. Geilfuss was the person intended to be
summoned. Both of these questions are, we think, to be answered in
the affirmative. In view of the well known skill of postal
officials and employees
Page 234 U. S. 398
in making proper delivery of letters defectively addressed, we
think the presumption is clear and strong that the letters would
reach -- indeed, that they did reach -- the true Albert B. Geilfuss
in Milwaukee. And it seems to us that any person knowing him, and
knowing the correct spelling of his name, and having reason to
acquaint him with the contents of a notice of this character if
supposed to be intended for him, would probably realize for whom
such notice was intended, notwithstanding the name was spelled
"Guilfuss." The general resemblance between the names is striking,
however they are to be pronounced. And the designation "assignee"
was an additional means of identification. That Geilfuss himself,
upon receiving the notice, would be sufficiently warned that it
affected his interest in the Minnesota lands under his judgments
against McKinley is free from doubt. He would, of course, observe
the misnomer, but, having received the notice which it was the
purpose of the law to convey to him, he could not safely ignore it
on the ground of the mistake in the name, any more than, if
personally served with summons within the State of Minnesota, he
could have ignored it on account of a similar misnomer.
We conclude that there was due process of law in the partition
suit, and that therefore the present judgment should be
affirmed.
Judgments in Nos. 325 and 326 affirmed.
*
"
CHAPTER 66"
CIVIL ACTIONS
"
* * * *"
"Section 5204. Service by publication, when allowed."
"When the defendant cannot be found within the state, of which
the return of the sheriff of the county in which the action is
brought, that the defendant cannot be found in the county, is
prima facie evidence, and upon the filing of an affidavit
of the plaintiff, his agent or attorney, with the clerk of the
court, stating that he believes that the defendant is no a resident
of the state, or cannot be found therein, and that he has deposited
a copy of the summons in the post office, directed to the defendant
at his place of residence, unless it is stated in the affidavit
that such residence is not known to the affiant, and stating the
existence of one of the cases hereinafter specified, the service
may be made by publication of the summons by the plaintiff or his
attorney in either of the following cases:"
"
* * * *"
"
Fifth. When the subject of the action is real or
personal property in this state, and the defendant has or claims a
lien or interest, actual or contingent, therein, or the relief
demanded consists wholly or partly in excluding the defendant from
any interest or lien therein. . . ."
"Section 5205. Publication, how made."
"The publication shall be made in a newspaper printed and
published in the county where the action is brought (and if there
is no such newspaper in the county, then in a newspaper printed and
published in an adjoining county, and if there is no such newspaper
in an adjoining county, then in a newspaper printed and published
at the capitol of the state), once in each week for six consecutive
weeks, and the service of the summons shall be deemed complete at
the expiration of the time prescribed for publication as
aforesaid."
"
* * * *"
"
CHAPTER 74"
"
ACTIONS FOR THE PARTITION OF REAL PROPERTY"
"
* * * *"
"Section 5771. Summons, to whom addressed."
"The summons shall be addressed by name to all the owners and
lien holders who are known, and generally to all persons unknown,
having or claiming an interest in the property."
"
* * * *"
"Section 5773. Rules as to civil actions applicable."
"Such action shall be governed by the rules and provisions
applicable to civil actions, including the right of appeal, except
that, when service of the summons is made by publication, it shall
be accompanied by a brief description of the property sought to be
divided, and except as herein otherwise expressly provided."