ROLLER V. HOLLY, 176 U. S. 398 (1900)

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U.S. Supreme Court

Roller v. Holly, 176 U.S. 398 (1900)

Roller v. Holly

No. 104

Submitted January 18, 1900

Decided February 26, 1900

176 U.S. 398


A state statute authorizing service of process by publication or otherwise upon absent and nonresident defendants has no application to suits in personam, but is a sufficient authority for the institution of suits in rem where, under recognized principles of law, such suits may be instituted against nonresident defendants.

Where a statute specifies certain classes of cases which may be brought against nonresidents, such specification operates as a restriction and

Page 176 U. S. 399

limitation upon the power of the court; but where the power is a general one, it is, as respects suits in rem, subject to no limitation.

Where service of process was made upon a defendant residing in Virginia, requiring him to appear and answer a suit in Texas within five days, it is held that such notice was not a reasonable one, was not "due process of law"within the Fourteenth Amendment to the Constitution of the United States, and that a judgment obtained upon such notice was not binding upon the defendant.

This was an action instituted July 14, 1894, by the plaintiff Roller in the District Court of Limestone County, Texas, to recover a judgment against Stephen Holly and William Holly upon five promissory notes for $228 each, dated January 1, 1890, payable to plaintiff, for the purchase price of a tract of one hundred and fourteen acres of land in that county sold by him to them, and also to foreclose a vendor's lien upon the land to the amount of such notes.

To this action Joseph Peoples, H. W. Williams, and W. T. Jackson were also made parties defendant under an allegation that they were asserting an interest in the land, and a foreclosure of the vendor's lien was sought as against them. The defendants were all duly cited; the Hollys failed to answer, but the defendants Peoples, Williams, and Jackson filed an amended answer at the January term, 1895, of the court, in which they alleged that the plaintiff Roller bought the land in question from John W. and Cora E. Jordan in January, 1887, and gave in part payment therefor his note for $216.17, due November 1, 1890, in which note as well as in the deed made to him a vendor's lien was retained; that, before the maturity of this note, the firm of McClintic & Proctor had become its owners, and on December 24, 1890, began in the District Court of Limestone County a suit against the plaintiff for a foreclosure of the vendor's lien upon the land; that, "after due service being had," McClintic & Proctor, on January 9, 1891, recovered a judgment against the plaintiff for $276.65, with interest and costs of suit, and an order for the foreclosure of the vendor's lien; that an order of sale was issued, and on March 3, 1891, the land was sold by the sheriff of Limestone County for $300, and bought by defendant Williams, who paid the amount to the sheriff, though the defendant Jackson was interested with him

Page 176 U. S. 400

in the purchase, and on May 4, 1891, the two sold the land to their codefendant, Peoples.

Prayer: that in the event plaintiff recovered the land as against the defendants Williams, Jackson, and Peoples, they recover of plaintiff the $300 paid for the land, and that the same be decreed a lien thereon.

To this amended answer plaintiff filed a first supplemental petition, consisting of demurrer, exceptions, and answer, containing --

First. A general denial.

Second. That, at the time of the institution of the suit of McClintic & Proctor against him, plaintiff was a citizen of the State of Virginia, and resided in the County of Rockingham, said state.

That in January, 1890, he sold and conveyed the land in controversy to Stephen and William Holly by written instrument signed by him, and took the notes sued on as purchase price of the land.

That he put his said vendees in possession of the land, and that they were in possession of the land at the time of the institution of the McClintic & Proctor suit and had been in possession since the sale to them, and that neither they nor the Jordans were made parties to that suit.

That the McClintic & Proctor judgment was void as to plaintiff, because the District Court of Limestone County, Texas, never acquired jurisdiction over him nor the property in question.

That the judgment was not obtained, nor was the sale of the land made and obtained, by due process of law, but was in contravention of the Fourteenth Amendment to the Constitution of the United States.

That service of process on him in the McClintic & Proctor suit was obtained without the jurisdictional limits of the State of Texas, to-wit, in the County of Rockingham and State of Virginia.

That no writ of attachment or other writ was levied on the land.

Third. That the proceedings in the McClintic & Proctor

Page 176 U. S. 401

suit prior to the judgment and the allegations in the petition were ineffectual to confer jurisdiction on the District Court of Limestone County over either the person of plaintiff or the land.

Fourth. That the time given him in which to answer the suit of McClintic & Proctor before the actual rendition of their judgment was not reasonable notice, nor such due and orderly proceedings, under the facts and circumstances as disclosed by the record thereon, as the law requires.

Fifth. That the lien attempted to be enforced in the McClintic & Proctor suit was an equitable lien, created by operation of law, and there has been no legislation in Texas authorizing such suit.

Upon an agreed statement of facts, substantially as above, judgment was rendered by default in favor of plaintiff against the Hollys for $1,722.66, but the court refused to enforce the vendor's lien against the land, and gave judgment against plaintiff and in favor of Williams, Jackson, and Peoples for costs. Plaintiff appealed to the court of civil appeals, which affirmed the decree of the district court. 13 Tex.Civ.App. 636. Plaintiff thereupon applied to the supreme court of the state for a writ of error, which that court refused; whereupon he sued a writ of error from this Court.

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