
    Wood & Pond v. Elias M. Stanberry et al.
    
    1. In an action to foreclose a mortgage, a personal judgment against a nonresident defendant who has been served only by publication under section 70 of tbe code (S. & O. 964), upon a showing that the action was brought for the sale of real estate under a mortgage and that the defendant was a nonresident of the State, is absolutely void, for want of jurisdiction over the person of the defendant; and a levy, under an execution issued thereon, upon the goods and chattels of such defendant, is wholly invalid as against a lien under a subsequent levy of an attachment in favor of other creditors of such judgment debtor.
    2. Where a sheriff has in his possession goods and chattels by virtue of a levy under an execution issued upon a void judgment, and afterward levies, sub- ' ject to his former levy, an order of attachment in favor of other creditors of the judgment debtor, upon the same property, and proceeds or threatens to proceed, under the direction of the plaintiff in execution, to sell the same, for the purpose of applying the proceeds upon the execution, the plaintiffs in attachment may restrain the sale by irqunetion.
    
      Appeal. Reserved in the district court of Morgan county.
    The defendant, Elias M. Stanberry, held two promissory notes made to him by William T. Purviance, each for the sum of $1,500, dated January 26, 1865. The notes respectively matured June 9, 1866, and June 9, 1867, and were secured by mortgage on certain real estate in Morgan county.
    On January 30, 1867, Stanberry filed his petition in the court of common pleas of Morgan county, against Purviance, alleging the execution of the mortgage and notes, and that there was due on the first note the sum of $1,099, and interest from June 9, 1866, and that the second note was not due until June 9, 1867. In his petition, Stanberry prayed for a judgment for the amount due upon the first note, and for the amount of some taxes; also for an order for the sale of the mortgaged premises, and for other proper relief.
    With his petition Stanberry filed an affidavit that Perviance was a non-resident of Ohio, but a resident of Allegheny county, Pennsylvania, and that service of a summons, could not be made on him in Ohio, and that affiant desired to obtain service by publication.
    Stanberry caused the publication of notice to Purviance, stating the filing of the petition setting, forth the execution of the mortgage “ to secure the payment of $3,000, according to two certain notes referred to in said mortgage and petition, and praying for a judgment against saidWm. T. Purviance for $1,099, with interest from the 16th day of June, A. D. 1868; also for $40.75 — this with interest from the 15th of Jan. 1867, and for sale of mortgaged premises; and said Wm. T. Purviance is notified to appear and answer by the 23d March, 1867.”
    The publication of this notice was all the proceeding ever had to bring Purviance into court, and the only mode by which he was brought into court.
    At the following term of the common pleas, Purviance failing to appear, the court found due to Stanberry the sum of $1,190.40, and ordered that, upon default of payment for ten days after, the rising of the court, the mortgaged premises should be sold, &c.
    Under that order the premises were sold for $2,400, an amount sufficient to pay the sum found due to Stanberry, and leave a surplus of $1,141.63 to apply on the second note.
    On the 13th of July, 1867, Stanberry filed a supplemental petition in the action, stating that the second note was then due and unpaid, and claiming a vendor’s lien as well as a mortgage lien on the premises, and asked for a further judgment on that note.
    No additional notice or other process was resorted to or served on Purviance ; but at the August term, 1867, of the court Stanberry took a judgment, under his supplemental petition on the second note, for $1,679 and costs, the court also confirming the sale of the lands previously made, and ordered the proceeds to be applied to the payment of the first judgment and the residue on the second judgment,, leaving a balance of about $537.37 of the second judgment unpaid, for which Stanberry, on March 30th, 1868, caused execution to issue against the property of Purviance, generally. On April 4th, 1868, this execution was levied on a certain steam engine and fixtures and other specified personal property, and the same was advertised to be sold under the levy, on April 20th, 1868.
    Prior to the 17th of April, 1868, Wood and Pond commenced an action against Purviance in the same court, andr on the requisite affidavit, procured an order of attachment to be issued against the goods and chattels of Purviance, for $305, the amount of their claim, and $50 probable costs. The-sheriff1, under this order, attached the steam engine and fixtures and other personal property upon which he had levied, the execution in favor of Stanberry, and the property was appraised at $491.50, and the sheriff made return accordingly, adding that the property had, on April 4th, 1868, been taken by him' on the execution in the case of Stanberry against Purviance, and was advertised to be sold under that execution, on April 20th, 1868.
    
      Thereupon Woocl and Pond filed their petition in the court of common pleas of Morgan county, reciting the pendency of their action against Purviance, the issuing of the order of attachment, the levy of the order on the personal property, the sheriff's return on the order, the fact that the sheriff had levied the execution, in the case of Stanberry against Purviance, upon the property, and that it was advertised for sale as stated in his return, and claiming that the execution was erroneously issued, there being no judgment in favor of Stanberry on which any general or personal execution could be legally issued against the property of Purviance, that the levy under the execution is void, but, inasmuch as the sheriff is proceeding under it, by order of Stanberry, to sell the property, and as that would remove it out of the possession of the sheriff, so that it would not or might not be forthcoming, to be sold under the attachment and judgment of the plaintiffs when they should obtain a judgment, they ask that Stanberry be restrained from selling the property under the execution, or causing the same to be done, until the matter can be heard in court, and that, on final hearing, a perpetual injunction may be granted, &c.
    
    A provisional injunction was granted on this petition by the probate judge; and afterward, at the June term, 1868, of the common pleas, the court, having overruled Stanberry’s motion to dissolve the injunction, ordered that the injunction be perpetual.
    From this order Stanberry appealed to the district court, where the case was reserved to this court for decision.
    
      F. B. Pond, for plaintiffs :
    The action of Stanberry v. Purviance, can only be treated as a proceeding strictly in rem. No personal service was ever had upon Purviance, nor was there any attempt to get actual service. Stanberry simply proceeded by publication under the third clause of the act to amend the 70th section of the code, (S. & S. 543,) where it relates to the 45th section of the code. S. & C. 959. This third clause of section 45 clearly contemplates only a proceeding in rem, and is not susceptible of any broader signification. It cannot have been intended by that clause to authorize the court to hold the defendant personally under this publication, and to authorize the court to render a personal judgment against him, or any judgment at all. The most that the court could do in that case, was to find the amount due the plaintiff upon the first note, and order the sale of the mortgage premises to pay that amount'. When the sale was made and the proceeds applied, the power of the court was exhausted. Pelton v. Platner, 13 Ohio, 209, 217, 218; Arndt v. Arndt, 15 Ohio, 33.
    The published notice does not describe the second note as a cause of action, nor indicate that any judgment will be asked on account of it, nor does the original petition ask for any judgment thereon; nor was any additional notice published, or served before or after the supplemental petition was filed ; so that if a personal judgment might have been rendered for the amount claimed on the first note, none could be taken on the second note, even in rem. There was, therefore, no valid judgment upon which the execution could issue, and, therefore, it ought not to have issued, and when issued, was illegal and void.
    But the execution did issue, and was levied on the property, and the sheriff being about to sell the property under the execution, the rights of the present plaintiffs may be seriously impaired if the sale be not restrained by injunction against Stanberry.
    This is not only a proper remedy, but is really the only full and complete remedy available to the plaintiffs. Code, sec. 238 et seq; Disney’s Rep. 232, and cases there cited; Story Confl. Laws, secs. 539-549 ; Hilliard on Injunctions, secs. 1, 13, 14, 15, 16, 17, 18, 19 23, 27, 28, 35, also page 319 ; 11 Ohio, 257 ; 15 Ohio, 435, 447 ; 3 Daniel’s Ch. Pr. 1822, 3, 1871, 2.
    
      E. M. Stanberry, in person:
    1. The facts presented by the petition for an injunction are not such as are required by sec. 238 of the code. It does not appear but that Purviance had other property within the jurisdiction of the court, and of which the claim of the plaintiffs could be made. They do not aver that the defendant in this case, who as they claim had unlawfully seized the property attached by them, was irresponsible in damages in an action at law. If the judgment of this defendant upon which the property was taken on execution was void, and the property had been sold at his instance on such void judgment, it could not affect the lien thereon obtained by the plaintiffs by virtue of their levy in attachment, and the plaintiffs could then have brought their action at law for the trespass and damages sustained by them, and their remedy would have been complete and adequate, if the party thus appropriating the property had been responsible. See Stewart v. Little Miami R. R. Co. 14 Ohio, 353, 358 ; Mechanic's & Trader's Bank v. Debolt, 1 Ohio St. 591.
    2. The judgment of this defendant against Purviance, upon which the execution issued, is a subsisting and valid-judgment, and for this reason the injunction should be dissolved.
    The plaintiff in that case was compelled to bring his suit in Morgan county. Code, sec. 45, S. & C. 959. And the 70th section of the code, as amended, (S. & S. 543,) authorised the plaintiff to serve Purviance by publication, because he was a non-resident. And the act of 1846, (S. & S. 575,) authorised the plaintiff to ask in his petition a judgment for the money claimed to be due, and authorises the court to render judgment for the amount duo, as in actions for the recovery of money only.
    That action was both in personam and in rem ; and Purviance was in court, having been served by publication, for any judgment or decree that might be rendered in the case, the same as if personal service had been made. 10 Ohio St. 373, 4 ; Hamilton v. Jefferson, 13 Ohio, 427 ; Myers et al. v. Hewitt, 16 Ohio, 456; 1 Abbott’s N. Y. Dig. p. 660 ; Matter of Empire City Bank, 18 N. Y. (4 Smith) 199; Newman's Lessees v. Cincinnati, 18 Ohio, 323 ; Lessee of Morgan v. Burnett, 18 Ohio, 535, 547; Sturges v. Longworth, 
      1 Ohio St. 544, 549, 550 ; Code, sec. 221, S. & C. 1009 ; S. & S. 38-9, secs. 9 and 10.
    As to the notice being insufficient to authorise judgment upon the note falling due June 9, 1867. Both notes are set out in full in the original petition, and the total amount of the mortgage claim is specified in the notice.
    After jurisdiction was' once acquired, however irregular and erroneous the proceedings may be, they cannot be collaterally impeached. They are not void but only voidable. Lessee of Adams v. Jefferies, 12 Ohio, 272 ; Lessee of Paine v. Moreland, 12 Ohio, 435, 443, 445 ; Lessee of Cochrain’s heirs v. Loring, 17 Ohio, 409, 431.
    The plaintiffs have no right to dispute the validity of the judgment of Stanberry v. Purviance. It may be fairly presumed that Purviance, knowing that his land was sought to be subjected to the plaintiffs claim, was satisfied that the claim was just and that a judgment should be rendered against him for the amount. If Purviance was satisfied, these plaintiffs have no right to complain.
   McIlvanie, J.

It may be conceded, for the purposes of this case, that the legislature has power to confer upon State courts jurisdiction to render a personal judgment against a non-resident defendant who has been served with notice of the suit by publication only, and to subject, by levy and sale under execution, the general property of such judgment debtor, situate in this State, to the satisfaction of such judgment. But after that, the question remains, whether such jurisdiction has been conferred in an action “ for the sale of real property under a mortgage,” when the sole ground for publication of notice is, that the defendant is a non-resident of the State.”

In the action of Stanberry v. Purviance (mentioned in the petition,) the service by publication was authorized under section 70 of the code, upon the showing made in the affidavit, solely upon the ground that the suit was brought “ for the sale of real property under a mortgage, and that the defendant was a non-resident of the State.” By such service tbe court acquired jurisdiction over the mortgaged premises, and over the person of the defendant, for the purpose of the action as described in the affidavit, in so far as that purpose is one of those named in this section. But the only purpose of the action described in the affidavit for publication and authorized by this section was “ for the sale of real property under a mortgage,” a proceeding strictly in rem. The jurisdiction, therefore, conferred by this section over the person of a non-resident defendant in such an action, is limited to matters pertaining to the sale of the mortgaged premises ; and the court, having disposed of the mortgaged property and its proceeds, has no further jurisdiction over the person of the defendant.

Nor can authority to render a personal judgment in such a case, upon constructive service only, be found in the act of May 19, 1864, (S. & S. 575,) which provides as follows: “ That in all actions for the foreclosure of mortgages given to secure the payment of money, or in which a specfiic lein for money claimed'to be due, is sought to be enforced, the plaintiff may also ask in his petition a judgment for the money claimed to be due ; and such proceedings shall be had, and judgment rendered thereon, as in other civil actions for the recovery of money only.”

The plaintiff in that action framed his petition under this statute, and prayed for a personal judgment, and also the sale of the mortgaged premises. It does not necessarily follow, however, that the plaintiff is entitled to a personal judgment in all actions for the foreclosure of mortgages, simply because he is authorized by the terms of this statute to ask for such judgment. But, on the other hand, it does follow that, if the plaintiff seeks such judgment under favor of this statute, then “such proceedings shall be had” as in civil actions for the recovery of money only. This provision of the statute is applicable whenever a money judgment is sought, and is a limitation upon the authority to render personal judgments in actions for the foreclosure of mortgages, which would otherwise be inferred from the general terms of the statute. The phrase “ such proceedings shall be had,” embraces the orginal process, and all other means employed for the purpose of obtaining jurisdiction over the person of the defendant.

Now, in civil actions for the recovery of money only, jurisdiction over the person of the defendant can only be acquired as follows: 1st. By service of a summons, or by an acknowledgment on the back of the summons, or the voluntary appearance of the defendant. (S. & C. 962, 3, section 61 et seq). 2d. By publication of notice in the following cases, 1, “in actions brought against anon-resident defendant, or a foreign corporation having in this State property or debts owing them, sought to be taken by any of the provisional remedies, or to be appropriated in any way,” and 2d, “in actions where the defendant, being a resident of the State, has departed therefrom or from the county of his residence with intent to delay or defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with like intent.” (S. & C. 964, clauses 3 and 5 of sec. 70.)

In the case of Stanberry v. Purviance, no summons was served, nor was there an acknowledgment on the back of the summons, nor a voluntary appearance of the defendant, nor was there a publication of notice upon a showing that the case was one of those mentioned in the 3d and 5th clauses of section 70. Hence, “such proceedings were not had” as are required in civil actions for the recovery of money only. The personal judgment rendered therein is therefore void for want of jurisdiction of the person of the defendant. And the levy of the execution issued thereon is wholly invalid as against the lien of the plaintiffs.

Do the facts stated in the petition entitle the plaintiffs to the relief sought ?

The remedy which an injunction affords them is complete, and no other process or proceeding is adequate to the preservation of their rights, or their just compensation for injuries, if the sale under the execution is permitted. They cannot appear in the case of Stanberry v. Purviance and ask the court to recall the execution,. for the reason that they are not parties therein; and, for the same reason, they cannot, upon the return of the execution, ask the court to control the proceeds of the sale for their benefit: Nor can they, by proceedings in error, stay the execution or reverse the judgment upon which it was issued. They cannot recover the possession of the property attached from the sheriff — the possession is rightfully in him, nor can they maintain trespass against him, for the reason that the execution, being regular on its face, is his justification. If the property be sold under the execution and delivered to purchasers, an order of sale under their attachment will be fruitless ; an action against the purchaser, if insolvent, will afford no redress, and if solvent, will impose burdens and expenses upon them for which no compensation can be made.

In short, there is no other adequate remedy, and therefore the case is a proper one for an injunction.

Decree for plaintiffs.

Scott, C. J., and Welch, White and Day, JJ., concurred.  