Washington University Law Review Volume 14 Issue 2 1929 Jurisdiction in Actions in Rem and in Personam Morris E. Cohn Los Angeles Bar Association Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Conflict of Laws Commons Recommended Citation Morris E. Cohn, Jurisdiction in Actions in Rem and in Personam, 14 ST. LOUIS L. REV. 170 (1929). Available at: https://openscholarship.wustl.edu/law_lawreview/vol14/iss2/5 This Note is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. ST. LOUIS LAW REVIEW SAMUEL BRECKENRIDGE NOTE PRIZE AWARDS The Samuel Breckenridge Law Review Note Prize of fifteen dollars for the best note in the final number of Volume XIII has been awarded to Joseph Nessenfeld for his note on "Remova- bility Where Resident Co-Defendant Is Not Served." The additional Samuel Breckenridge Prize of ten dollars for the best note in Volume XIII has been awarded to Abraham E. Margolin for his note on "Liability of Employer Under Work- men's Compensation Act for Accidents Sustained by Employee on Way to or From Work," which was adjudged best in the first issue and awarded the prize for that issue. The notes in Volume XIII were judged by a special committee, consisting of Messrs. Ralph R. Neuhoff, John M. Holmes, and Harry W. Kroeger, who are also members of the Law Review Advisory Committee. JURISDICTION IN ACTIONS IN REM AND IN PERSONAM Suppose Mr. Jones, who is a resident of Illinois, has broken a contract giving Mr. Smith a right of action. The latter is a resident of Missouri; but, because Jones has no property in that state and because he remains in Illinois, Smith's right of action is worthless unless he cross over into Illinois and sue there. Such is the result of the rules of law today. That there is no logical reason for this rule is the fact which this note seeks to establish.* It is necessary that the present law be given in order to make comprehensible the fact that in the above situation Smith's right is without a remedy in Missouri. In law there are two general classes of actions and judgments, i. e., in personam and in rem. Another form of action has been designated as an action quasi in rem, but this in theory comes under the other classes, and it will be considered later. An ac- tion in personam is one the judgment of which in form as well as in substance, affects the interests of the parties., It is, as one court phrases it, against a person, founded on the defendant's liability.2 The judgment binds only the parties litigant. There * There are.a number of considerations which this note will not treat. Such problems as due process, the divorce question, etc., are specific impedi- ments in the path of the plan to be suggested in the note. For example, it would entail a complete reconstruction of the present conception of due process. The author's intention is to present some of the bases for his. -view, and not to treat of detail; that would necessitate a volume, at least. 1 Hine v. Hussey (1871), 45 Ala. 496, 515; Allen v. Morris (1870), 34 N. J. L. 159, 162; Woodruff v. Taylor (1847), 20 Vt. 65, 73; Stiller v. Atchi- son R. Co. (1912), 34 Okla. 45, 124 P. 545, 598. Gassert v. Strong (1908), 38 Mont. 18, 33. Washington University Open Scholarship NOTES is little difficulty in arriving at a definition of an action in per- sonam; but a definition of actions in rem has caused a great deal of confusion, probably because the courts themselves are not clear as to the meaning of the term. An action in rem is one whose judgment is an official decree of the status of a thing as it concerns persons. It is binding on every interested party. Not all decisions have framed the definition exactly like this one, but in general the trend has been at least an attempt at it.3 The fact that the law has recognized a distinction between these two kinds of actions has given rise to a difference in the forms and procedure of them. One of the chief differences is the distinc- tion in jurisdictional requirements; and in a system of divided sovereignty, where the jurisdiction of a sister state is the decid- ing factor of whether the state of the forum will recognize a foreign judgment, these distinctions in jurisdictional require- ments are especially important. Jurisdiction is the power and the legal authority to declare what is law in a given situation.4 The legal authority, in a sense, rests on the power. It has been declared that the ulti-, mate basis of jurisdiction is the physical power to enforce the court's decree. 5 In another sense the word jurisdiction is used to indicate the proper exercise of power, so that foreign states will recognize and enforce the decree. That is the more humane and civilized kind of jurisdiction, and it is the kind which is necessary under the due process clause of the Federal Constitu- tion. Yet it must be admitted that the final authority is not legal but physical; even if another state enforces a foreign judg- ment, its power to do so rests in practice on the power to compel the defendant physically. However, we shall treat of jurisdic- tion in its humane or international sense. Jurisdiction for an action in rem is obtained by getting the property or the thing within the control of the court. For an action in personam the defendant must be in court, or at least he should have been ap- prised of the proceedings and should have had an opportunity to get his day in court.6 But physical control of the defendant is not absolutely necessary in an in personam action. What Mr. Justice Holmes calls the "decencies of civilization" has given 'Mankin v. Chandler (1823), 2 Brock. 125; Woodruff v. Taylor (1847), 20 Vt. 65; The Sabine (1879), 101 U. S. 384, 388; Freeman v. Alderson (1886), 119 U. S. 185, 7 Sup. Rep. 165; Windsor v. McVeigh (1876), 93 U. S. 274, 279; The J. W. French (1882), 13 Tex. 916; Lord v. Chadbourne (1856), 42 Me. 428, 443; 3 Freeman, JUDGMENTS, p. 3109; 2 Black, JuDG- MENTS, Sec. 793. ' 1 Black, JUDGMENTS, Sec. 3220. ' The Belgenland (1885), 114 U. S. 355; McDonald v. Mabee (1917), 243 U. S. 90, L. R. A. 1917F, 458. "Pennoyer v. Neff (1877), 95 U. S. 714. ' Michigan Trust Co. v. Ferry (1913), 228 U. S. 346. https://openscholarship.wustl.edu/law_lawreview/vol14/iss2/5 ST. LOUIS LAW REVIEW rise to a few other bases of jurisdiction. Thus a valid judg- ment may be obtained against an absent defendant, if service of process is had at his domicile.8 Also, a defendant who has con- sented to the jurisdiction of a court cannot afterwards escape the force of its decree., And under the police power of a state a new basis of jurisdiction has arisen in the case of transient motorists passing through the state.10 But this will be con- sidered more fully later. Disregarding for the moment any historical reasons, what are the bases for the jurisdictional requirements in actions in rem? The first consideration is the limitations of the state's sover- eignty to the boundaries of its territory. No state will issue a nugatory decree. The object of the judgment must be within the state, so that the decree can be made effective. It would be foolish for a New York court to adjudicate the status of land located in Missouri. The sovereign power of New York ends with its boundaries; it does not reach within the state of Mis- souri. And not only will that latter state refuse to enforce the ,New York decree, but it will deny its validity because of the lack of jurisdictional requirements.i1 The practical result of this jurisdictional requirement is beneficial in that it gives a plaintiff a means of enforcing his right against the defendant even when the latter is out of the state, if, however, he owns property within the state. And that is a good thing. Other- wise, the defendant could.be immune to legal process merely by removing himself to another state. At present he must remove his property, too, which is much more difficult. The power to coerce the defendant is one reason for the juris- dictional requirement of his being within the state in actions in personam. If Jones remains in Illinois a Missouri judgment is a nullity even within the state of Missouri. The limitations of sovereignty are equally as valid in the case of persons as in 'Henderson v. Stanfard (1870), 105 Mass. 504, 7 Am. Rep. 551; but serv- ice at the defendant's technical domicile has been held insufficient; McDon- ald v. Mabee, supra, note 5. 'Hazel v. Jacobs (1910), 78 N. J. L. 459, 75 A. 903, 27 L. R. A. (N. S.) 1066, 20 Ann. Cas. 260. "Hess v. Palowski (1925), 247 U. S. 352. See also 14 ST. Louis L. REv. 62. " Wimer v. Wimer (1888), 82 Va. 890, 5 S. E. 536, 3 Am. St. Rep. 126. Even where the parties litigant are in court, the judgment may neverthe- less be ineffective because the property affected is not within the jurisdic- tion of the court.