
    John Skinner, John Hurd and William Hurd vs. John McDaniel.
    Orleans,
    
      March, 1832.
    A plnintiiTin ejectment mast show flic defendant in actual possession of*the premises-demanded at the time the suit was commenced, or lie cannot recover.
    Certain defendants in an action of ojectment residing in another state at the time the suit was commenced, no service was made on them liy attachment or otherwise, and they not having had notice-of its pendency, the court ordered notice to be given by publication in a news-paper, agreeably to the requisitions of the statute respecting persons absent from the state, at the time a suit'is commenced against them, and have nonotice of it; — the defendants not appearing in pursuance of said notice,, judgement was rendered against them by default. On a writ of review afterwards brought by these defendants, it was held that the judgement was void for want of jurisdiction ofthe court, and that they had no occasion to biiug a writ of review in. order to avoid the judgement.
    If neither person nor property of one, againsfcwhom a suit is brought, can he found in lliis state whereon to serve process, the court has no jurisdiction over him.
    This was a writ of review, brought in pursuance of the stature1, c7t. 7,55, to review an action of ejectment which had been brought by McDaniel against Skinner, and John and William Hurd,and others. The officer who served the writ returned that he had served it on three of the defendants, who resided in the county of Orleans, but made no mention of Skinner and the two HurdSf who- resided in Massachusetts, nor of Hadley, another defendant, who resided in the state of New-York. Rut the action was entered in court agaiust all the defendants. The following record shows the proceedings in the county court t
    
    
      “ John McDaniel ) vs. > “ Jeffrey Watson et al. ) Orleans County Court, February term,. 1825-
    
      “ Luther Kidder, Jefliy Watson and Hezekiah Davis, ofHyde-park,in the county of Orleans, Jacob P. Hadley,of Constable, in the slate of New-York,.and John Skinner, John Hurd and William Hurd, of Charleston in the state of Massachusetts, were attached to answer unto John McDaniel,. of said Hydepark, in a plea that to the plaintiff, the defendants render the seizin and peaceable possession of a certain tract or parcel of land with the appurtenances thereto belonging, lying and being in said town of Hydepark and described as follows, to wit: seventy-seven acres- and fiftv two rods of the east side of number thirteen, on the first division, drawn to the right of Roger Enos, jr. and having a dwelling house and two barns thereon, divided by a lino running, through said lot parallel with the west line thereof; also twenty acres and thirty-eight rods being the west side, and south half of lot number sixteen, in the first division in said town, known by the name of the Latriphier farm ; also one quarter of an acre of land-on the main road leading from Wolcott through said Hydepark to Johnson,, and being near the mansion of the said' John McDaniel 
      io.said town of Hydepark, with a dwelling house thereon. See writ on file. This cause was entered February terra, 1824, and continued, Hadley, Skinner and Hurds, being out of the state. September term, 1S24, it was continued under the usual order of raotice by publication in a newspaper; and now at the present terra, order of notice having been complied with, the defendants, though three times called in open court, do not appear, but hereof make default. Whereupon, the court on the showing of the plaintiff, considered and adjudged that the plaintfi recover of the defendants the quiet and peaceable possession of the premises demanded, one cent damages and his costs, allowed at thirty dollars and thirty six cents, and that writ for possession and execution may issue. Writ issued 8th March, 1825 ; returned 3d May, 1825. . Attest, Ira H Allen, Clerk.''1
    
    
      . On the trial of the action of ejectment in pursuance of said writ of'review, the issue being joined to the country, the said ■John McDaniel gave in evidence a mortgage deed of the land in question from Jacob P. Hadley, dated 10th January, 1821, to .McDaniel, and a decree of foreclosure of the equity of redemption on said'mortgage, March term, 1827'. The said Skinner and Hurds gave in evidence to the jury the levy of a certain execution in their favor against the said Jacob P. Hadley, on the land in question, on the 2d August, 1820, and records made of said execution, and officer’s return thereon, on the 3d day of August, 1820, in the proper offices for recording the same ; but there was no evidence that Skinner and Hurds took actual possession of said land under their execution and levy.
    The court instructed the jury, that Skinner and the Hurds were not liable to McDaniel in the present action without some further proof of their being in possession of the premises, either by themselves, or some tenant, than what is above recited. The jury found a verdict for McDaniel against the other defendants ; but against McDaniel in favor of Skinner and Hurds, on the ground that they were not in possession of the premises, when the action was commenced. To which charge of the court McDaniel excepted, and the exception was allowed. The cause now came before this Court on a motion for a new trial, founded on an alledged misdirection of the court to the jury.
   The opinion of the Court was delivered by

Baylies, J.

There is no doubt the court below instructed the jury correctly. It has long been established, that the plaintifF, in ejectment must show the defendants in possession of the land demanded, at the commencement of his action : showing that tits' defendants have some sort of claim to the land is not sufficient. But when we examine the record of proceedings in the action of ejectment,.and the judgement rendered on default, we cannot discover the necessity of a writ of revieiv being brought by Skinner and the two Hurds to reverse that judgement. It appears by the writ of ejectment, that Skinner and the two Hurds resided in Charleston, in Massachusetts, and were citizens of that state ; and' they had no property here, and no service of the writ was made upon them. But their names were entered upon the docket-of the court, as defendants in the action, ft is a question,-whether-the court, having no jurisdiction of the action, as it respected SkinJ ner and Hurds, for want of service of the writ upon them, could acquire jurisdiction by making an order of notice to them to be published in the news-paper, as was done in this case ? The statute, (eh. 7, s. 55,) says, “ That if the party against whom any “ suit shall be brought, were absent from the state, at the time; u of commencing such suit, and shall not return within the same- “ before the time of trial, the court, in which such suit is brought,. “ shall continue the action to the next term of said court, (unless “ the plaintiff shall make it appear to the satisfaction of the court, “ that the defendant had notice of the service of such process, a “ sufficient time before the return thereof to have appeared at said 15 court, and have had a trial.) And it is hereby made the duty “ of the plaintiff to cause personal notice of such suit, and contin- “ nance, to be given to the defendant, twenty days previous to the next term of said court. And unless it shall appear to the “ court, that the defendant has been notified, the court shall fur- “ ther continue said action, and order further notice to be given, “ by directing a publication thereof to be made in some public “ news-paper, at their discretion.”

The writ must be served on the absent defendant in someone of the ways pointed out by statute. If the writ be not served, the court can have no jurisdiction of the action — not even to continue it, for the plaintiff to give the defendant notice. But if the writ be served, the court may continue the action from term to term, and order notice to be published in a news-paper. So a citizen of another state, whose property is attached in this state, may be notified of the pendency of the action agreeably to the above act. But if neither the person, nor property of a citizen of another-state, can be found in this state, whereon to serve process, the courts of this state can have no jurisdiction over him. Neither (be persons, nor property of Skinner•, and the two Hurds, were found, whereon to serve the writ of ejectment, and no service was rnade'on them. The court then could have no jurisdiction of the action, as it respected' them ; nor could the court acquire jurisdiction by ordering notice to be published in a news-paper; because the writ not being served, was not a case for notice within the above statute. If after such notice, the court proceeded and rendered judgement against Skinner and the two Hurds, on their default, such judgement must be utterly void for want of jurisdiction. It could not be necessary for Skinner and Hurds to bring a writ of review to avoid this void judgement; but as they have brought such writ, and succeeded in it, the

Sawyer & Fleiehér, for reviewee.

Paddock & Toting, for reviewers.

Judgement of the county court is affirmed with additional costs.  