England, provide, "That when in any suit, commenced in any court of the United States, to enforce any legal or equitable lien upon, or claim to, or to remove any incumbrance or lien or cloud upon, the title to real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of, or found within, the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear, plead, answer, or demur by a day certain to be designated, which order shall be served on such absent defendant or defendants, if practicable, wherever found, and also upon the person or persons in possession or charge of said property, if any there be; or where such personal service upon such absent defendant or defendants is not practicable, such order shall be published in such manner as the court may direct not less than once a week for six consecutive weeks; and in case such absent defendant shall not appear, plead, answer, or demur within the time so limited, or within some further time to be allowed by the court, in its discretion, and upon proof of the service or publication of said order, and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district; but said adjudication shall, as regards said absent defendant or defendants without appearance, affect only the property which shall have been the subject of the suit, and under the jurisdiction of the court therein, within such district; and when a part of the said real or personal property against which such proceeding shall be taken shall be within another district, but within the same State, said suit may be brought in either district in said State: Provided, however, That any defendant or defendants not actually personally notified as above provided may, at any time within one year after final judgment in any suit mentioned in this section, enter his appearance in said suit in said Circuit Court, and thereupon the said court shall make an order setting aside the judgment therein, and permitting said defendant or defendants to plead therein on payment by him § 97. 12 Wm. IV, ch. 33; 4 & 5 Wm. IV, ch. 82. or them of such costs as the courts shall deem just; and thereupon said suit shall be proceeded with to final judgment according to law.” * 2 U. S. R. S., § 738; as amended by act of March 3, 1875, ch. 137, §8 (18 St. at L. 472). All statutes which authorize proceedings against absent defendants and unknown heirs upon service by publication must be strictly followed. Hunt v. Wickliffe, 2 Pet. 201; Boswell v. Otis, 9 How. 336. In Karr v. Karr, 19 N. J. Eq. 427, the court said: "Two substantial parts of the notice are that it shall not be entitled in the cause and shall be directed to the defendant. The notice published is entitled in the cause and is not directed to the defendant, although he was named in the title." It was held in Corrigan v. Schmidt, 126 Mo. 304, 28 S. W. R. 874, that service by publication against "Owen Corrigan" and Elisha Corrigan" did not bind John Owen Corrigan and Elizabeth Alicia Corrigan. In Colton v. Rupert, 60 Mich. 318, 27 N. W. R. 520, that a publication against "Grant B. Hunt" did not bind Garrett B. Hunt; in Entrekin v. Chambers, 11 Kan. 368, that service by publication against "Robert Brimford" did not bind Robert Binford; in Chamberlain v. Blodgett, 96 Mo. 482, 10 S. W. R. 44, that a publication against "M. B. Miller" did not bind M. B. Millen, although the tract books of the county gave the name of the landowner as Miller; in Marx v. Hanthorn, 148 U. S. 172, that notice of the sale for taxes of the prop erty of "Ida J. Hawthorn" gave no jurisdiction over the property of Ida J. Hanthorn. In Meyer v. Kuhn, 65 Fed. R. 705 (C. C. A., per Fuller, C. J.), it was held that publication of a summons against “Sarah E. Meyers, and the unknown heirs of Henry Meyers, deceased," was insufficient to acquire jurisdiction over Elizabeth Meyer, who was the executrix and devisee of Henry Meyer, deceased, and was so described in the bill; in Gonzalia v. Barelsman, 143 Ill. 634, 32 N. E. R. 532, that an affidavit referring to "Fred Meyers" could not be construed as applicable to Fred Meyer. But see Smurr v. State, 88 Ind. 504; in Hardester v. Sharretts, 84 Md. 146, 34 Atl. R. 1122, that where a bill was filed "against the unknown heirs of the children of Benjamin Hardester, deceased," a publication summoning the children of Abraham Hardester was insufficient, although they were the persons referred to in the bill and came within that description, Abraham being the son of Benjamin. In Purdy v. Henslee, 97 Ill. 389, it was held that a publication addressed to "the unknown heirs and legal representatives of Thomas Osborn, deceased," was insufficient to bring the heirs at law of Susanna Osburn before the court, although her heirs at law were the same as those of Thomas In Ferriss v. Louis, 2 Tenn. Ch. 291, it was held that a publication against the unknown heirs of Doolin did not bring before the court Doolin's devisees in remainder. But in Steinmann v. Strimple, 29 Mo. App. 478, it was held that an order intended for Benjamin F. S. was sufficient when directed to Frank S., that being the name by which Benjamin was usually known. In Lane v. Innes, 43 Minn. 137, 45 N. W. R. 4, that a change of the name of "Berlah M. Plimpton" to "Beulah M. Plimpton" was not fatal; in White v. McClellan, 62 Md. 347, that the omission of a middle initial of a party's name did not invalidate the notice; and in Fanning v. Krapfl, 61 Iowa, 417; s. C., 68 Iowa, 544, 14 N. W. R. 727, 16 N. W. R. 293, 26 N. W. 8 The statute applies, although there is but one defendant.3 It is no defense to such a suit that neither of the defendants thus served, nor the plaintiff, is a resident of the district. Nor, it has been held, that the property in question has been attached by a State sheriff. Process can thus be served in an action of ejectment, in a suit to foreclose a railway' or other mortgage; but not so as to justify a decree for the deficiency against a mortgagor who does not appear; in a suit to quiet title; 10 for example, a suit by the United States to cancel land patents," or by an individual to cancel a deed, obtained from him by duress and fraud," or by the creditors of a corporation to set aside a conveyance of its land and a mortgage of its personalty, and also to obtain a dissolution of the corporation and a receiver; 13 but not in a suit to set aside a R. 133, and Buchanan v. Roy's Lessee, 2 Ohio St. 257, that the publication was sufficient where the names were incorrectly spelled but they were accompanied by another description which made the identification clear. In Fanning v. Krapfl, 61 Iowa, 417, 420, the court said: "A published notice is not necessarily sufficient if it is such that the defendant, upon actually seeing it, would probably conclude that it was intended for him. The office of the notice is in part to give the pendency of the action notoriety. It should be such that others than the defendant, seeing it and knowing the defendant, or knowing of him, would not probably be misled by it as to the person for whom it was intended." In Detroit v. Detroit City Ry. Co., 54 Fed. R. 1, it was held that where the advertisement named the defendant as "The Washington Trust Co.," a Michigan court did not acquire jurisdiction over "The Washington Trust Co." of the City of New York. In Pana v. Bowler, 107 U. S. 529, it was held that the publication by an Illinois court of a notice to the " unknown holders and owners of bonds issued by the town of Pana" was in sufficient to acquire jurisdiction over non-resident bondholders. 3 Ames v. Holderbaum, 42 Fed. R. 341; Wheelwright v. St. L., N. O. & O. C. Tr. Co., 50 Fed. R. 709; supra, § 22. 4 Ibid. 5 Wheelwright v. St. L., N. O. & O. C. & Tr. Co., 50 Fed. R. 709; supra, 9. 6 Spencer v. Kansas City S. F. Co., 56 Fed. R. 741. 7 Farmers' L. & Tr. Co. v. Houston & T. C. Ry. Co., 44 Fed. R. 115. So in a bondholder's suit to enjoin waste of the mortgaged property. Pollitz v. Farmers' L. & Tr. Co., 39 Fed. R. 707. 8 Du Pont v. Abel, 81 Fed. R. 534. 9 Ibid. 10 U. S. v. Southern Pac. Ry. Co., 63 Fed. R. 481; U. S. v. American Lumber Co., 80 Fed. R. 309; Evans v. Charles Scribner's Sons, 58 Fed. R. 303; Duff v. First Nat. Bank, 13 Fed. R. 65. 11 U. S. v. Southern Pac. Ry. Co., 63 Fed. R. 481; U. S. v. American Lumber Co., 80 Fed. R. 309. 12 Evans v. Charles Scribner's Sons, 58 Fed. R. 303. 13 Mellen v. Moline Iron Works, 131 transfer of insurance policies, issued by a foreign insurance company and not within the district although secured by bonds within the district. So in a suit to compel specific performance of a contract to sell real estate in a State whose laws make a decree, where the defendant does not appear, as effectual as a conveyance by him; 15 but where there was no such statute it was held that process could not thus be served; 16 but not in a suit to establish and enforce a right of membership in the Associated Press in a district where the latter corporation is not domiciled, although the right is to be exercised in that district. It has been held that a subpoena cannot thus be served when the main object of the bill is for an accounting by an absent and non-resident defendant, although there is also a prayer for the appointment of a receiver of property within the district; 18 but it seems that service can thus be made in a suit to establish a trust in real estate although the bill also prays an accounting.19 Process cannot thus be served in a suit to remove a cloud upon the title to a patentright although the official letters-patent evidencing the patentright are within the jurisdiction.20 It has been said that jurisdiction may be thus obtained of a bill to enforce a lien upon shares of the stock of a corporation within the district although the certificates are not there.21 An absent judgment debtor may thus be served in a suit by the creditor to appropriate his assets. It has been held at Circuit: that an order in pursuance of this statute may be obtained immediately on filing the bill, upon proof by affidavit that the defendant does not dwell within the district, and cannot be served or found U. S. 352; Single v. Scott Paper Mfg. 14 Evans v. Charles Scribner's Sons, 58 Fed. R. 303. 19 Porter Land & Water Co. v. Baskin, 43 Fed. R. 323. 20 Non-Magnetic Watch Co. v. Association H S. of Geneva, 44 Fed. 15 Morrison v. Marker, 93 Fed. R. R. 6. 692. 21 Jellenik v. Huron Copper Min. 16 Municipal Inv. Co. v. Gardiner, Co., 177 U. S. 1; Merritt v. Am. Steel 62 Fel. R. 954. Barge Co., 79 Fed. R. 228; Ryan v. 17 Lawrence v. Times Pr. Co., 90 Seaboard R. Co., 83 Fed. R. 889. ConFed. R. 24. tra, Kilgour v. N. O. G. L. Co., 2 Woods, 144. 18 Ellis v. Reynolds, 35 Fed. R. 394. But see Porter Land & Water Co. v. Baskin, 43 Fed. R. 323. 22 Brigham v. Luddington, 12 Blatchf. 237. Compare Picquet v. Swan, 5 Mason, 35; s. c., 5 Mason, 561. 26 therein; where the bill shows that the defendant is a nonresident; 23 that there is need in such a case of a previous attempt to serve a subpoena;24 that the day named for his appearance need not be one of the rule-days of the court; 25 that personal service of the order must be made in all cases where the residence of the absent defendant is known or can be ascertained, or service upon him can be made within a reasonable time and by the exercise of reasonable diligence; and that its service by publication can only be authorized upon proof by affidavit of the facts showing that personal service without the jurisdiction is impracticable. The affidavit should state the known places of residence of the absent defendants, and show that diligence has been used to ascertain the places of residence which are unknown." The fact that it would be very expensive to make personal service upon the absent defendant whose residence was known was held ground for allowing service by publication.28 If the absent defendant reside in another district of the United States, the safer practice is to obtain an order directing the marshal of that district to serve him.29 A misnomer of a defendant, thus served, who does not appear, will invalidate the whole proceedings.30 A defect in personal service, or the fact that personal service was obtained by fraud, will not prejudice proceedings regularly taken under this statute." This statute does not change the law as to the difference of citizenship essential to jurisdiction.2 It has been doubted whether it can be applied to a suit removed from a State court.33 Compliance with State statutes providing for service by publication will not give a Federal court jurisdiction either in law or in equity. An order of a Fed 23 Forsyth v. Pierson, 9 Fed. R. 801; U. S. v. American Lumber Co., 80 Fed. R. 309. But see Bronson v. Keokuk, 2 Dill. 498. 24 Ibid. 25 Forsyth v. Pierson, 9 Fed. R. 801. 26 Bronson v. Keokuk, 2 Dill. 498; Batt v. Procter, 45 Fed. R. 515. Cf. Marx v. Egner, 180 U. S. 314. 27 Batt v. Procter, 45 Fed. R. 515. An affidavit sworn to four months previously was held to be insufficient. Spreen v. Delsignore, 94 Fed. R. 71. 28 Batt v. Procter, 45 Fed. R. 515. 29 Bronson v. Keokuk, 2 Dill. 498; Forsyth v. Pierson, 9 Fed. R. 801. 30 Meyer v. Kuhn, 65 Fed. R. 705. 31 Fitzgerald & M. C. Co. v. Fitzgerald, 137 U. S. 98. 32 Tug River Coal & Salt Co. v. Brigel, 67 Fed. R. 625. 33 Adams v. Heckscher, 80 Fed. R. 742, 744. 34 Bracken v. Union Pac. Ry. Co. (C. C. A.), 75 Fed. R. 347; s. c., 56 Fed. R. 447. |