
    Palmer v. Cowdrey.
    Practice in chancery. The practice in chancery cases, and the manner of serving process and publishing notice of suit, is regulated by the law of the Territory, and not by the equity rules of United States courts.
    
    Notice by publication — when sufficient. Process should be personally served where the defendant is within the jurisdiction, and for that purpose the officer should hold the summons until the return day. A return non inventus, made before the return day, will not support a notice by publication.
    
    
      Error to District Court, Arapahoe County.
    
    Messrs. Brown & Putnam, for plaintiff in error.
    Mr. H. E. Hunt, for defendant in error.
    
      
       See Hornbuckle v. Toombs, 18 Wall. 648, a later case, in which this doctrine is fully established.
    
    
      
       The same rule was applied in Wise v. Brocker, decided at this term.
    
   Hallett, C. J.

Defendant in error filed Ms bill in the Arapahoe district court, on the 25th day of February, A. D. 1868, and the summons was made returnable to the ensuing May term of the court. Notice of the pendency of the suit was published in a newspaper as provided in section 8 of the act relating to chancery practice (K,. S. 93), and on the 30th day of March, and more than a month before the return day, the summons was returned non inventus. Plaintiff in error, failing to appear at the May term of the court, the bill was taken as confessed by her and a decree of foreclosure was passed. In this decree it was provided, that if the amount obtained upon the sale of the mortgage premises should be insufficient to pay the amount found to be due to defendant in error, the master should report the deficiency to the court, and, upon confirmation of the report, that execution should be issued for the sum so found to be due and unpaid. As the summons was not served upon plaintiff in error, and there was no appearance by her in the court below, we are first to consider whether the method pursued to bring her into court was effectual to that end. It is contended that the practice in chancery is regulated by the equity rules of the courts of the United States, according to which service by publication of notice cannot be made, and that the legislative assembly is without authority in the premises. This proposition rests upon the authority of Orchard v. Hughes, 1 Wall. 73, which originated in a district court of the late territory of Nebraska, and, like the case at bar, was a bill to foreclose a mortgage. In that case the district court awarded execution for the balance due after the sale of the, mortgage premises ; a proceeding not warranted by the general practice of courts of equity, and for which there was then no authority in the equity rules prescribed by the supreme court. In Noonan v. Lee, 2 Black, 499, it had been previously decided that without a rule of court to authorize it, a district court of the United States had no power to direct payment of the balance remaining unsatisfied after the sale of the mortgaged premises, and it was held, that the same practice should govern the district court of Nebraska territory. After Orchard v. Hughes was decided,, and at the same term of court, a rule was adopted obviously for the purpose of conferring upon circuit and territorial courts, the authority that had been denied to them in. the cases mentioned. It has been suggested, that Orchard v. Hughes was a case in which the court had jurisdiction under the laws of the United States, and that the practice of United States courts was, for that reason, applied; Stacy v. Abbott, 1 Am. L. T. 84; but there is nothing in the opinion of the court, or in the reporter’s notes, to indicate that such was the fact, or that the court intended to limit the application of the rule to any class of cases. In the recent case of Clinton v. Englebrecht, 13 Wall. 434,. it was said, that Orchard v. Hughes was decided upon the ground, that the chancery jurisdiction conferred upon territorial courts was beyond the reach of territorial legislation, and this seems to identify the case with the principle established in Dunphy v. Kleinsmith, 11 Wall. 610. In the case last mentioned it was held, that the chancery jurisdiction, conferred by congress upon a district court of the territory of Montana, could not be divested by the legislative assembly of the territory, and that in a cause of equitable jurisdiction the statute of the territory conferred upon the court no power to proceed to trial by jury, and judgment according to the course of practice in courts of law. In this, nothing more is affirmed than that the chancery and common-law jurisdictions of territorial courts must be separately maintained ; a proposition for which there is direct authority in the organic acts of the several territories. In these acts it is declared that the courts ‘ ‘ shall possess chancery as well as common-law jurisdiction,” and this provision undoubtedly requires that the general distinction between courts of law and of chancery shall be maintained, so far at least as to prevent the transfer of causes from one forum to the other. To remove a cause from the equity to the common-law side of the court, or to effect that result by providing that all issues of fact shall be tried by jury, would be to remove the cause to another forum and to abolish chancery jurisdiction, which is established by the organic act. Therefore, it cannot be doubted that the chancery jurisdiction of territorial courts is beyond the reach of territorial legislation, but I do not perceive that the organic act extends beyond this point. In another clause it is provided that the jurisdiction of the several courts, both appellate and original, and of justices of the peace, shall be as limited by law, and this is followed by certain limitations upon the jurisdiction of justices of the peace, and probate courts, not material to our present inquiry. The law here referred to, which shall further define the jurisdiction of the courts, is unquestionably the law of the territory, so that, if we read this clause in connection with that first mentioned, we find that the legislative assembly is authorized to define and establish the jurisdiction of the courts, subject to the restriction that the distinction between common-law and chancery proceedings must be respected. In addition to the clause referred to, by which power to regulate the jurisdiction of district courts is expressly conferred upon the legislative assembly, subject to the limitation respecting chancery and common-law proceedings, the power of the legislative assembly is extended to all rightful subjects of legislation, consistent with the constitution of the United States and the provisions of the act. It will not be contended that the practice of the courts, at law and in chancery, is not a rightful subject of legislation, so that, as to jurisdiction and practice, we have full authority in the legislative assembly, with the single restriction that the chancery and common-law jurisdiction shall be separately maintained. There are, indeed, other provisions relating to writs of error and appeals, and the jurisdiction of justices of the peace and probate courts, which are to be regarded as limitations upon the powers of the legislative assembly, but they do not affect the present inquiry, and therefore need not be noticed in this connection. Nor is it necessary to the decision of this cause that the effect of the clause respecting chancery and common-law jurisdiction as a limitation of the power of the legislative assembly, should be considered ; the powers which the court below was asked to exert were such as are usually conferred upon courts of equity. Accepting the organic act as the charter of our government, we find that the jurisdiction and practice of the courts of the territory are to be regulated by the territorial assembly, maintaining the distinction, between chancery and common-law proceedings. Accordingly, it was held in Clinton v. Englebrecht, supra, under the Utah act, which, in this respect, is like our own, that the method of procuring jurors for the trial of cases was a rightful subject of legislation, and that the whole matter of selecting, summoning and impaneling jurors was left to the territorial legislature. This case establishes the principle, clearly deducible from the organic act, that the jurisdiction and practice of the courts of the territory may be defined and regulated by the legislative assembly, subject to the limitations contained in the act. And this construction appears to have been accepted without question in some of the early territories. Rogers v. Bradford, Pinn. (Wis.) 418; Lorrimer v. Bank of Illinois, Mor. (Iowa) 223. With humility I confess that I am unable to harmonize the decision in Orchard v. Hughes with this principle. That was a chancery case, while Clinton v. Englebrecht was at law; but I submit that the power of the legislative assembly is the same in chancery as at law. As we have seen, the legislative assembly is equally bound to maintain the chancery and common-law jurisdiction, and within these limits the powers of that body are plenary. The language of the organic act applies with equal force to both jurisdictions. When it is said that the jurisdiction of the courts, both appellate and original, shall be as limited by law, this must mean the jurisdiction in chancery as well as at law; and if the practice at law is a rightful subject of legislation, where shall we find authority for saying that the practice in chancery is not equally such? When this subject shall be brought before the supreme court again, the logical force of the decision in Clinton v. Englebrecht will, I think, lead to the overthrow of the doctrine of Orchard v. Hughes, and therefore I am content to adhere to the practice long established in this territory by the act of assembly. To overturn this practice at the present time would greatly disturb vested rights, and this should not be done, unless it clearly appears that the act is not supported by the organic law. In this discussion I have purposely refrained from entering into the question of the jurisdiction of district courts when sitting for the trial of causes arising under the constitution and laws of the United States. This being a case under the laws of the territory, what is here said should not be extended beyond the class to which the case belongs. The attempt of defendant in error to obtain service by publication of notice was rightly directed, but he failed to secure full compliance with statute. In section 8 of the chancery act (Rev. Stat. 94), which provides for publishing notice of the pendency of the suit, it is declared that this proceeding (the publication of the notice) shall not dispense with the usual exertion on the part of the sheriff to serve the summons. The law intends that service of the summons shall be made on the defendant, if he can be found within the jurisdiction during the life of the writ. If the defendant is not in the county at the time the summons is placed in the hands of the officer, he may come into the county before the return day, ■and if notice by publication has been given, it is nevertheless the duty of the officer to serve the summons, if he can find the defendant in his bailiwick. To the performance of this duty it is necessary that the officer should retain the summons in his hands until the return day; for after return of non inventus of course the officer cannot obey the command of the writ. In the present case the sheriff' returned the summons more than one month before the return day, and thereafter he could not comply with the statute by making the usual exertion to serve it. Whether the defendant came into the county after the return and during the life of the writ, we do not know, nor can we be informed except by the return of the proper officer. By the return, as it stands in the record, it does not appear that service could, not have been made during the life of the writ, and the court had no authority to proceed upon notice by publication without such evidence. For this cause the decree must be reversed, with costs, and the cause remanded for further proceedings.

Belford, J.

While I fully concur in the opinion of the chief-justice, I deem it my duty to say that, in my judgment, the power of the territorial legislature over the legal and chancery practice of the district courts is full, ample and complete. It has been repeatedly held by the supreme court of the United States that a territorial legislature, acting under its general delegation of power given in its organic act, can legislate on all subjects which fall within the domain of rightful legislation. The mode of procedure in courts of justice is certainly a rightful subject of legislation. Sparrow v. Strong, 3 Wall. 104; Rogers v. Burlington, id. 662.

Wells, J.

I concur in all that has been said by the chief-justice, except so far as relates to the case of Dunphy v. Kleinsmith, and I agree that the doctrine of that case is here correctly interpreted ; but it appears to me that it is sought to justify the doctrine of that case upon principle, which, with submission, I conceive to be unnecessary, and perhaps scarcely appropriate. It is sufficient, I conceive, to yield to the authority of the court of final resort without going further.

Reversed.  