
    In re HENDRICKSON.
    (167 N. W. 172.)
    (File No. 4261.
    Opinion filed March 26, 1918.
    Rehearing denied May 7, 1918.)
    1. Insane Persons — Guardianship—Jurisdiction, County Court— Service on Resident Outside of State, Effect — Statutes. Under Prob. Code, Sec. 379, requiring notice to supposed incompetent person of time and place of hearing; Sec. 337, providing that when personal notice is required and no mode of giving it is prescribed it must be given by citation; Sec. 336, providing that a citation must be served in same manner as a' summons in civil action; Code. Civ. Proc., Sec. 110, providing for service of summons in certain contingency by leaving copy thereof at his dwelling house in presence of member of his family, etc.; and Sec. 112, as amended by Laws 1907, Ch. 127, providing, among other things, that where a resident defendant has departed from this. state with intent to avoid service of a summons, the summons may be in first instance served upon him personally without the state; held, that where after petition presented to county court to have defendant, a resident of the state, declared incompetent, a citation was returned non est inventus, and an order upon affidavit showing defendant had departed from the state with intent to avoid service, was made finding such fact and directing service of a new citation upon her either within or without the state, which was served upon her personally without the state, the court acquired jurisdiction over defendant’s person.
    2. Constitutional Law — Due Process — Personal Service Without State — Citation of Insane Person — Statutes—Former Decision Commented On.
    Personal service upon an alleged incompetent without this state, she being a resident of this state; such service being pursuant to a citation from county court, is not violative of Const., Art. 6, Sec. 2, concerning denial of due process of law; construing Prob. Code, Secs. 379, 337, 336, providing for notice to supposed incompetent of time and place of hearing, for notice in certain cases by citation and for service of citation in manner as for summons; and Code Civ. Proc., Sec. 110, providing for service1 of summons, if defendant cannot conveniently be found, by leaving copy at his dwelling house, etc.; and Sec. 112, as amended by Laws 1907, Ch. .127, providing for publication of summons in certain contingencies, including that of defendant having departed from the state with intent to avoid service of summons, and that where service may be made by publication, summons may be in first -instance served upon defendant personally without the state without a previous order for publication; court having in its order for such outside personal service found that the alleged incompetent had departed, etc. Certain quoted language in Straub v. Lyman L. & I. Co., 32 S. D. 571, 141 N. W. 979, disapproved.
    Appeal from Circuit. Court, Hamlin County. Hero. Carr G. Si-iErwood, Judge.
    
      In -the matter of Maria Hendrickson, am allegad imocimpetent. From a judgment of the circuit court reversing an order of t!h.e ■county 'Court denying- a motion to quash service of a citation and dismiss' proceeding's for want or jurisdiction over the person of the alleged 'Incompetent, Minnie K. Wayryuen and1 another appeal.
    Judgment of circuit court vacated, with directions to ¡remand proceedings- to ¡county court for further proceedings.
    
      Linstrom & Benthin, W. N. Skinner, ¡and! Bugene P. Camp-Bell, for Appellants.
    
      M. J. Russell, for Respondent.
    (1) To point ¡one of the opinion, Appellants citad: Prob. ■Code, Sec. 412.
    (2) To point two of the opinion, Resplendent cited1: Raher v. Raher et al., (Ia.) 129 N. W., 494.
   GATES, J.

Verified petitions were filed in the county court •of Hamlin county, representing that Maria Hendrickson of said ¡county, and the owner of certain described real property therein, was mentally incompetent to care for herself and to manage her ¡Ipraperty, and asking that her brother, ¡one of the petitioners, be •appointed guardian elf her person and' property. A ¡day was fixed for hearing the petitions and the court caused a citation 'to be issued to the alleged incompetent. On the return day the citation was filed ¡showing a non est return, and an affidavit was filed, • showing that on the day the petitions were filed she was taken from the home of one Sa’knclnsion in Brookings county, ■where she bad been living for about five months., and ¡removed to Ely, St. Louis county, Minn., and it was charged that such •departure from ¡the state was with the intention' and purpose on her ¡part to avoid service of said citation.. Thereupon the court ■adjourned the hearing, made an ¡order finding that she (had departed from the state with the intention and purpose aforesaid, ■and directing- the issuance of a new- citation, and that it lie served .personally upon her wherever ¡slhie might be found, either within or without the state. The citation w'as personally served upon her at Ely, St. Louis county,- Minn. On the return day counsel made a 'special appearance for her, and' objected to the jurisdiction ¡of the court over her pension and ¡property, and moved the •court to quash the service and the return thereof and to dismiss the proceeding for want of jurisdiction. The county court .denied said motion, and! from, an order denying itbe same, an appeal was taken to the circuit court of Hamlin county. Upon itbe hearing upon said1 appeal the court entered judgment, the gist of wbic'h is as follows:

.“It is ordered and adjudged that, in so far as the county court -assumed jurisdiction -of the person of Mania Hendrickson ■by the ¡personal service of a citation on her in the state of Minnesota, the proceedings of Ithe -county court were without authority and void, 'because the service of the 'Citation on Maria Hendrickson at Ely, St. Eouis county, Minn., did not conifer on, or give to, the county -court jurisdiction in said proceedings of ■the person of Maria Hendrickson, and the salid service of the ■citation and the return thereof should have been quashed and set aside; that no personal judgment of the county court could be rendered against Mania Hendrickson on said service, tire citation having been -served on hier without the state of South Dakota and witlhlin tire state of Minnesota and mot otherwise; that that part of the order of the -county. court so appealed from- be and' the sarnie is hereby reversed accordingly in so far as it is in conflict With the judgment of the circuit court.”

Prom such judgment the petitioners appealed to ¡this court. Assuming that the order of the county court was an appeable order, and that the -circuit court regularly -acquired- jurisdiction of the -appeal, which matters we deem it unnecessary to consider at this time, the 'important question for determination is whether the circuit court erred in determining that the personal service of’the citation upon the alleged incompetent in the state of Minnesota, she being a -resident oif South Dakota, did not giive die county court jurisdiction of the person of Maria Hendrickson.

Section 379, Prob. Code, requires notice to be given to the supposed incompetent person of the time and place of hearing. Section 337, Prob. Code, provides that when a personal notice is required and no mode Of' giving it is prescribed, it must be given by citation. Section 336, P-rob. Code, provides that a citation must he served in tine same manner as a summons in a civil action. Section 110, C. C. P. provides:

“The summons -slhal-l -be served by delivering 'a copy thereof, as follows: * * *
“6. In all atibar cases to the defendlamt personally] and if the defendant cannot conveniently be faunld] by leaving a copy thereof -at Ih'is dwelling house i'n the presence of one or more of the members of his family, over, tibe age of fourteen years; or if the defendant reside in the family of another, with one of the members of the family in which he resides over the age of fourteen years. Service made in any of the modes provided in this section shall be taken and held to be personal service; and all writs, process, or orders issued by any oif the courts of this state, or by the judges thereof, in an action or proceeding-, shall be served' in the manner, and uipon the persons or officers mentioned in this section, and none other except in oases- where service of papers can be made upon ian attorney after appearance, as provided by -the Code of Civlill Procedure.”

Section 112 C. C. P. provides:

“Where die person on Whom the service -of the summons is to be made, cannot, after d'ue diligence, be found' within the state, and! that fact appears by affidavit to the satisfaction of the court or a judge thereof, and lit in like manner appears that a cause of action exists 'against the defendant in respect to whom the service lis to be made, or that he is a proper party to -an action relating to real property in this state, such count or judge may grant an order that fee Service be made by the publication of a summons' in either of the following cases: * * *
“2. Where the defendant, being a resident of this state, has departed therefrom with intent * * * to avoid the service of a summons. * * *”

Chapter 127, Laws 1907, added the following to said section 112:

“Provided), that in any case where service may be made on a defendant, by publication, as provided in this section, 'the summons atucll complaint may, at the option of itbe plaintiff, be in the first instance, 'servad upcta the defendant personally without -the state in which event it shall not be necesisairy to’ present any affidavits to the Court or procure any order for servliioe by publication.”

lit will thus be seen that, if the delivery o>f the ciitaibion to the supposed incompetent person in th'e state of Minnesota was' efficacious, she has met been 'denied 'tire due process of law guaranteed by .article 6, § 2, of the state Constitution and by the Fourteenth Amendment to tih.e federal Constitution.

It must be conceded that .if at the time of service Maria. Hendrickson was a resident of Minnesota,, and not a resident of Sbutii Dakota, the judgment of the circuit court was right. Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565.

Having before it the decision of -the Iowa Supreme Count, In re Raher, 150 Iowa, 511, 129 N. W. 494, 35 L. R. A. (N. S.) 292, Ann. Cas. 1912D, 680, and the decision of this court in Straub v. Lyman L. & I. Co., 31 S. D. 571, 141 N. W. 979, 46 R. R. A. (N. S.) 944, in which occurs the fallowing sentence:

“It may be conceded! that no person, «resident or nonresident off the state, cam be -required ‘by service of process or notice in a foreign, state to appear and .defend in tihe courts of the state from 'wibiic'h such notice or process issues, except -in those cases in which -the impending action is intended to 'affect property or status of 'such person .already within the jurisdiction of die state or iits courts”

—.it is not 'to be wondered at that the learned! trial court arrived at the conclusion expressed in the judgment. But upon further consideration we are unable to accord our aipp'roval 'to the decision in the Raher Case, and we are mow of the opinion that die above-quoted sentence from the Straub Case, which was obiter, stated the law too broadly. I11 'the -Straub Case the deciding feature was the fact that the loica'1 Corporation was actually within this 'state, although its officer served with process was dien without the state. The opinion fin that -case makes 'it entirely 'dear 'that tihe .delivery of .a summons outside the state in -an action Bln personam -is not an i!dle act nor void of efficacy.

Since tllie opinion in due Raher Case the Supreme Court of Texas hiais given this matter just as thorough consideration as d!id the learned Justice McClain in die Raher Case, and has arrived at the opposite result in tihe case of Mabee v. McDonald, 107 Tex. 139, 175 S. W. 676, basing its decision largely upon the principle of the amenability of the citizen of the state to- its laws and upon the right of a state to provide by statute for the character 'of die service of process that may be made upon an absent citizen, in which view we 'concur.

A review of due many decisions of the courts of this country is unnecessary, for they have all, oir nearly all, been exhaustively reviewed in the Raher Case and1 in the Texas case. In a comparatively recent case the Supreme Judicial Court of Massachusetts said of Pennoyer v. Neff, supra, in Nichols v. Vaughan, 217 Mass. 548, 105 N. E. 376:

‘‘Thalt case does not g'o to the extent of holding that the Count© of ithie state in which one is 'domiciled, and to which he owes allegiance cannot acquire jurisdiction over him so as to he abite to render a judgment in pers'onam except after personal service of process upon him within the .state. There are, however, expressions in severa! decisions of that court which lend support to that view.”

After the citation of eight decisions of the United States Supreme Coiurt, in all of which such. expressions were dicta because the party served with process was in each case a nonresident, the count continues (the italics are ours) :

“Of course, if that is the law under the Fourteenth Amendment of the federal Constitution as established by the Supreme Court of the United States, it is authoritative 'and binding upon all state courts.”

It 'thus appears that tibe learned Massachusetts court is not satisfied that such obiter expressions should be taken as declaratory of what the law really is.

It must be conceded, under thle statutes above referred to, and under .the great weight of judicial! authority, that, if the' citation had been served by leaving a copy 'at the Salroonson home in Brookings county with the proper member of the family, no question could have been successfully raised as to the character of the service. In the c-asie note to. the Raher Case the scholarly annotator in 35 L. R. A. (N. S.) on pages 296, 297, hte critically analyzed the situation, and by what seems to us to toe unanswerable logic, has arrived ait the same conclusion as the Texas coiurt. We should like to adopt the whole of his “Conclusion” as a part of this opinion, -but space forbids more than ithe following portions :

“If actual personal service upon a resident defendant in an action in .personam were the only kind oif service that would fulfill the requirement of due process of law, it might be conceded that personal service upon a resident defendant beyond the limits 'of the state waul'd not be 'sufficient. But if it may be conceded that due process is satisfied even in casie of an action in personam, by leaving a copy of the iprocess at t'he last known place of abode of -a defendant wlio is a resident of the state, although absent therefrom at the time (a kind of service which may not in fact -impart notice to- him at all) there seems to he no reason why personal service of process upon him outside of the state (a kind of service that insures actual notice) should nlot he sufficient, unless handing tire coipy of the notice of process to the defendant in another state must be denied efficacy 'aBtogelther, either as personal service or as a form of -constructive or substituted service, v * * Personal service out of the state, therefore, not hieing so contrary to constitutional principles -as not to be entitled’ to any' efficacy at all, why may it not be regarded' as sufficient to confer jurisdiction in personam upon -a -resident -not for the s'ame reason that personal service within 'the state is sufficient, but because it -is -at -least the equivalent of constructive :op 'substituted service -by publication, or by leaving -a copy at the residence of the defendant within the state. Certainly, from a practical point of v-iew, whatever may be said in its favor from' a technical- legal point of view, a doetrflne which concedes due efficacy of a kind -of service which at mioislt only renders probable actual notice to a resident defendant of the pendency of the suit, and denies the effidacy of -a -mode -of serviice which insures actual notice, although imparted by an act which takes- -place out -of the state, 'has but little to recommend -it.”

We therefore conclude that under our laws, which- dlo not violate the principies of due process of law !im so -far as absent citizens -of this state are concerned, the county count of Ham-lin, county acquired jurisdiction over the person of the- alleged incompetent by the service of the citation upon her in thie state of Minnesota. •

The 'judgment appealed^ from i-s therefore vacated, and the trial -court is directed to remand the proceeding to the county court of Hamlin comity for further proceedings according t-o law.  