MARX V. EBNER, 180 U. S. 314 (1901)

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U.S. Supreme Court

Marx v. Ebner, 180 U.S. 314 (1901)

Marx v. Ebner

No. 128

Argued January 22, 1901

Decided February 25, 1901

180 U.S. 314


Under section 56 of the Oregon Code, referred to in the opinion of the Court as in force in the District of Alaska, when an affidavit shows that the defendant is a nonresident of the district, and that personal service cannot be made upon him, and the marshal or other public officer to whom the summons was delivered returns it with his indorsement that, after due and diligent search he cannot find the defendant, such proof is sufficient to give jurisdiction to the court or judge to decide the question of foreclosure of a mortgage on real estate of the defendant situated in that district.

In such a case, facts must appear from which it will be a just and reasonable inference that the defendant could not, after due diligence, be found, and that due diligence has been exercised, and such an inference is reasonable when proof is made that the defendant is a nonresident of the state, territory or district, and there is an affidavit that personal service cannot be made upon him within its borders and there is a certificate of the marshal to the effect of the one which appears in this case.

The appellant has appealed from a judgment of the District Court of the United States for the district of Alaska dismissing his complaint. Both parties claim the property in dispute from a common source of title, which is the Takou Mining & Milling Company. The property consists of mining land in the Territory of Alaska, of which the defendants are in possession, and they claim title through a sale under a decree of foreclosure of a mortgage of the property by the Takou Company, which mortgage was executed at a time when the company was the owner of the property.

After the execution of the mortgage, the company conveyed some, but not all, of the property covered by it to one Sylvester Farrell, subject to the mortgage, and after the foreclosure and sale under the mortgage Farrell and wife and the Takou Company sold and conveyed all of the property to the plaintiff, who claims to own the same subject to whatever may be chanrobles.com-red

Page 180 U. S. 315

due on the mortgage. He contends that the foreclosure proceedings under which the defendants claim title to the property were totally void because the court in which they were conducted never obtained jurisdiction by valid service of process on the mortgage company or upon Farrell. The facts upon which the allegation of a lack of jurisdiction was based are set out in full in the complaint, and the plaintiff asks that the defendants be decreed to be mortgagees in possession, that an accounting may be had to ascertain the exact amount due on the mortgage, which is alleged to be about $1,000, and that the defendants vacate the property and surrender the possession thereof to the plaintiff, and that the pretended decree of foreclosure be annulled.

The defendants demurred to the complaint, the court sustained it, and, upon the plaintiff refusing to amend, a decree was entered finally dismissing his complaint, and from that decree he has appealed to this Court.