the several tracts of land in plaintiff's peti- | the case of Peter McGrael v. Stuart Newell
tion mentioned and described and all thereof; was rendered by a domestic court of general
that the said Stuart Newell be forever barred jurisdiction, and that said Newell was sued
from having or asserting any claim, right, as a citizen of said Brazoria county, and that
or title to all or any portion of said tracts of the record in said suit showed that fact and
land or any part thereof, and that the said showed that he was sued therein for the re-
plaintiff be forever quieted in the title and covery of land, and that he had appeared by
in the possession of all the aforesaid tracts of his attorney, demurred, pleaded, and an-
land. It is further considered by the court swered in the suit, and that his demurrer
that the plaintiff recover of the defendant had been contested before the court and a
his costs of this suit, and that execution is- hearing had on the case before a jury and
sue for the same.'
the plaintiff, and that said proceeding, judg.
that judgment was rendered in said suit for

dence admitted, and defendants excepted
"These objections were overruled, the evi-

"The defendants answered herein, demurring to the plaintiff's fifth amended originalment, and record import absolute verity, and petition upon the ground that it appeared that want of jurisdiction in said court could therefrom that the plaintiffs thereby at- not be established outside of said record in a (561]tacked collaterally *and alleged to be void the collateral proceeding such as the suit at bar. judgment of the district court of Brazoria county, in the state of Texas, and within the said eastern district thereof, a court of general jurisdiction of the parties and the subject-matter connected with and involved in said judgment, and that said judgment was a domestic judgment, assailable only in a direct proceeding to impeach it, and that no proceeding had ever been taken to review, appeal from, vacate, or qualify said judgment, and that plaintiff's right to do so is now barred by limitation and lost by laches. Defendants also answered by plea of not guilty and the statute of limitation of three, five, and ten years.

ment in the case of Peter McGrael v. Stuart "The issue of the validity of said judgNewell was submitted to the jury by the following charge of the court, viz.:

consideration: First, whether or not the ""There are only two questions left to your judgment rendered in Brazoria county, May 21, 1850, in favor of Peter McGrael against Stuart Newell was procured without service and without the authorized appearance of Stuart Newell. If the evidence satisfies "Upon the trial of the case in the circuit ty to the suit in fact that is, was not your mind that Stuart Newell was not a parcourt there was evidence offered by the plain- served and did not enter his personal appeartiffs tending to prove that Peter McGrael ance, and did not authorize Mr. Swett to apwas the common source of title, and that, as pear for him-you are instructed that the alleged in plaintiff's' petition, the land in judgment is a nullity and the plaintiffs are controversy had been conveyed by said Peter entitled to recover this land, unless defendMcGrael to said Stuart Newell in fee simple ants have it by statute of limitations. If in 1848, and that said Stuart Newell was not you determine from the testimony in this a citizen nor a resident of the state of Texas case that Stuart Newell was represented in at the time of the institution of the afore- that suit by Mr. Swett and he was authorsaid suit of Peter McGrael v. said Stuartized to represent him, in that event you need Newell in the district court of Brazoria coun- not consider the plea of limitation, but rety, Texas; that he was never served with turn a verdict for the defendants. If Mr. any process of any character in said suit; Swett was authorized to appear for Stuart that he had no knowledge of the institution Newell in the *litigation, you need not con-[563] of the said suit until many years thereafter; sider the plea of limitation, but return a verthat J. A. Swett was not his attorney in said dict for the defendants; but if you find from suit and had never been employed by him to the testimony that Mr. Swett was not aurepresent him in said suit, and that any ap- thorized to appear for him, then that judg pearance made for him by said Swett in said ment is a nullity and the title to this propsuit was without the knowledge or consent erty would be in the executors of Stuart of said Newell; that in said suit the proper- Newell, plaintiffs in this case, unless you ty in controversy had not been taken into the find under the plea of limitation which I possession of the court by attachment, se- shall instruct you upon in favor of the dequestration, or other process; that said Stu- fendants. If you find for the plaintiffs, the art Newell had never resided in Brazoria form of your verdict will be, "We, the jury, county, Texas; that he resided in Texas, in find for the plaintiffs against the defendGalveston county, from April, 1838; to No- ants." If you find for the defendants, the vember, 1848; that he left Texas in Novem- form of your verdict should be,"We, the jury, ber, 1848, and went to the city of Philadel- find for the defendants the land described in phia, and resided there until 1853 or 1854. the plaintiffs' petition and against the plainand from that time on up to the date of his tiffs," and in that event you are further dideath he had resided in the city of New York, rected to state whether or not you find the in the state of New York, and during said Brazoria county judgment was a valid or years was first a citizen of the state of Penn- void judgment, and you will also state [562]sylvania, whilst residing there, and then a whether you find the defendants have title citizen of the state of New York whilst residing there. to the property by limitation; and, if so, ants have the title to the property by reason you will add, "We, the jury, find the defendof the five years' limitation." Those are two special findings, if you find for the defend

"The evidence tending to establish the above facts was all objected to by the defendants upon the ground that said judgment in


ants. If you find from the evidence in this | A. Swett, the attorney who purported to apcase that Stuart Newell authorized Mr. pear for him in said suit, to make any such Swett to appear for him in that case, the appearance, and that the appearance by said judgment is valid, but if you find he was not attorney was made without his knowledge authorized to appear for him, then the judg- or consent." ment is a nullity. The burden of proof is upon the plaintiffs to show nullity of the judgment in Brazoria county.'


Mr. F. Charles Hume for plaintiff in er-
Mr. T. D. Cobbs for defendant in error.

"To this charge of the court the defend-
ants duly excepted and asked the court to
give to the jury the following instructions:

""The judgment of the district court of Brazoria county, rendered on May 21, 1850, in the case of Peter McGrael v. Stuart Newel, put the title to the land now sued for in said McGrael, and McGrael's deed to Westrope on March 2. 1860, put the title in Westrope, and defendants are entitled to your verdict, and you will find for them.'

"This instruction the court refused to give, and to this action of the court defendants duly excepted. The jury brought in the following verdict: We, the jury, find for the plaintiffs, as against the defendants, the [564]lands described in plaintiffs' petition;' which verdict was duly received and upon it judgment rendered for plaintiffs.

"The defendants in time filed their bills of exception, and this case was brought to this court by writ of error. Among other assignments of error it was complained that the circuit court had erred in overruling defendants' demurrer to plaintiffs' petition attacking the validity of said judgment in the case of Peter McGrael v. Stuart Newell and in permitting the introduction of the evidence hereinbefore recited and in charging the jury as hereinbefore recited and in refusing to charge the jury as hereinbefore recited.

"Whereupon, the court desiring the instruction of the honorable Supreme Court of the United States for the proper decision of the questions arising on the record, it is ordered that the following question be certified to the honorable the Supreme Court of the United States, in accordance with the provisions of section 6 of the act entitled An Act to Establish Circuit Courts of Appeals and to Define and Regulate in Certain Cases the Jurisdiction of the Circuit Courts of the United States, and for Other Purposes, Approved March 3, 1891,' to wit:

"Was the judgment of the district court of Brazoria county, Texas (said court being a court of general jurisdiction) in the case of Peter McGrael v. Stuart Newell, subject to collateral attack in the United States circuit court for the eastern district of Texas, sitting in the same territory in which said district court sat. in this suit, between a citizen of the state of New York and a citizen of the state of Texas, by evidence aliunde the record of the state court showing that the defendant, Stuart Newell, in said suit in said state court was not a resident of the state of Texas at the time the suit was brought ror a citizen of said state, but a resident citizen of another state, and that he was not cited to appear in said suit, and that he did not have any knowledge of said suit, and that he did not, in fact, appear in said suit, and that he did not authorize J.

*Mr. Chief Justice Fuller delivered the[565] opinion of the court:

The question is whether the judgment entered by the district court of Brazoria county, Texas, in favor of McGrael and against Newell, was open to the attack made upon it in the circuit court of the United States for the eastern district of Texas. The record of the suit in which that judgment was entered showed a petition in the ordinary form of trespass to try title, filed May 20, 1850, alleging McGrael and Newell to be resident citizens of the county of Brazoria, Texas, and describing several different tracts of land, one of which was situated in Brazoria county, and among the others, the tract in controversy, which was alleged to be situated then as now in Harris county, Texas; a demurrer and pleas signed by a person as "att'y for defendant," filed the saine day; a verdict and judgment against Newell rendered and entered May 21, 1850. The record does not show that any process was issued on the petition and served on Newell, or any notice given to Newell by publication or otherwise; or affirmatively that the person signing the demurrer and pleas was authorized to do so.

The evidence on the trial of the present case in the circuit court must be taken as establishing that Newell was not a citizen nor a resident of Texas at the time the suit was commenced in the Brazoria county district court; that he was never served with any process in that suit and had no knowledge of its institution until many years thereaf ter: that the person who signed the pleadings for defendant was not Newell's attorney and had never been employed by him to represent him, and that any appearance made for Newell in the suit was without his knowledge or consent; that in that suit the property in controversy was not taken into the possession of the court by attachment, sequestration, or other process; that Newell had never resided in Brazoria county, Texas, though he had resided in Galveston county prior to November, 1848, *when he went to[566] the city of Philadelphia, and resided there until 1853 or 1854, when he removed to the city of New York, where he resided up to the date of his death in 1891; and that during the period from November, 1848, to 1891 he was first a citizen and resident of Pennsylvania and then a citizen and resident of New York. This evidence was objected to on the ground that the judgment was rendered by a domestic court of general jurisdiction, and that want of jurisdiction cannot be established aliunde the record in a collateral proceeding.

In Thompson v. Whitman, 18 Wall. 457 [21: 897], a leading case in this court, it was

ruled that "neither the constitutional pro- | States are not required to give effect to
vision that full faith and credit shall be giv- judgments of this character when any right
en in each state to the public acts, records, is claimed under them. Whilst they are not
and judicial proceedings of every other state, foreign tribunals in their relations to the
nor the act of Congress passed in pursuance state courts, they are tribunals of a different
thereof, prevents an inquiry into the juris- sovereignty, exercising a distinct and inde-
diction of the court by which a judgment pendent jurisdiction, and are bound to give
offered in evidence was rendered;" that "the to the judgments of the state courts only the
record of a judgment rendered in another same faith and credit which the courts of
state may be contradicted as to the facts another state are bound to give to them."
necessary to give the court jurisdiction; and 95 U. S. 732 [24: 572).
if it be shown that such facts did not exist,
the record will be a nullity, notwithstanding
it may recite that they did exist;" and that
"want of jurisdiction may be shown either
as to the subject-matter or the person, or,
in proceedings in rem, as to the thing.”

But while these propositions are conced-
ed, it is insisted that the circuit court of the
United States for the eastern district of Texas
was bound to treat this judgment rendered by
one of the courts of the state of Texas as if it
were strictly a domestic judgment drawn in
question in one of those courts, and to hold
that it therefore could not be assailed col-

And in Goldey v. Morning News, where the authorities are extensively cited, Mr. Justice Gray said: "It is an elementary principle of jurisprudence, that a court of justice cannot acquire jurisdiction over the person of one who has no residence within its territorial jurisdiction, except by actual service[568] of notice within the jurisdiction upon him or upon someone authorized to accept service in his behalf, or by his waiver, by general appearance or otherwise, of the want of due service. Whatever effect a constructive service may be allowed in the courts of the same government, it cannot be recognized as valid by the courts of any other government. We are of opinion that this contention canFor example, under the provisions not be sustained, and that the courts of the of the Constitution of the United States and United States sitting in Texas are no more the acts of Congress, by which judgments of shut out from examining into jurisdiction the courts of one state are to be given full than if sitting elsewhere, or than the courts faith and credit in the courts of another of another state. A domestic judgment is the state, or of the United States, such a judgjudgment of a domestic court, and a domestic ment is not entitled to any force or effect, court is a court of a particular country or sov- unless the defendant was duly served with ereignty. Undoubtedly the judgments of notice of the action in which the judgment courts of the United States are domestic was rendered, or waived the want of such judgments of the nation, while in the partic- notice. If a judgment is rendered [567]ular *state in which rendered they are enti- in one state against two partners jointly, tled to be regarded as on the same plane in after serving notice upon one of them only, many senses as judgments of the state; and under a statute of the state providing that so the judgments of the courts of the sev- such service shall be sufficient to authorize a eral states are not to be treated by each judgment against both, yet the judgment is other or by the courts of the United of no force or effect in a court of another States as in every sense foreign judg- state, or in a court of the United States, ments. But the courts of the United States against the partner who was not served with are tribunals of a different sovereignty, and process. So, a judgment rendered exercise a distinct and independent jurisdic-in a court of one state, against a corporation tion from that exercised by the state courts, neither incorporated nor doing business and this is true in respect of the courts of within the state, must be regarded as of no the several states as between each other. validity in the courts of another state, or of And the courts of the United States are the United States, unless service of process bound to give to the judgments of the state was made in the first state upon an agent ap courts the same faith and credit that the pointed to act there for the corporation, and courts of one state are bound to give to the not merely upon an officer or agent residing judgments of the courts of her sister states. in another state, and only casually within the state, and not charged with any business of the corporation there. The prin ciple which governs the effect of judgments of one state in the courts of another state is equally applicable in the circuit courts of the United States, although sitting in the state in which the judgment was rendered. In either case, the court the service of whose process is in question, and the court in which the effect of that service is to be determined, derive their jurisdiction and authority from different governments." 156 U. S. 521 [39: 518].



The same rule applies to each, and the question of jurisdiction is open to inquiry even when the judgment of the court of a state comes under consideration in a court of the United States, sitting in the same state. Christmas v. Russell, 5 Wall. 290 [18: 475]; Galpin v. Page, 18 Wall. 350 [21: 959]; Pennoyer v. Neff, 95 U. S. 714 [24: 565]; Hart v. Sansom, 110 U. S. 151 [28: 101]; Goldey v. Morning News, 156 U. S. 518 [39: 517].

In Pennoyer v. Neff, Mr. Justice Field, after discussing the question how far a judgment rendered against a nonresident, without any service upon him, or his personal appearance, was entitled to any force in the state in which it was rendered, said: "Be that as it may, the courts of the United

It must be remembered that this action was commenced by Newell as a citizen of New York against citizens of Texas, in the exer-[569] cise of a right secured to him by the Constitution of the United States, and it would go

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far to defeat that right if it should be held that he was cut off in the circuit court from proving that he was not a citizen and resident of Texas when the controverted action was commenced, and that he had not authorized any attorney to appear for him in that action. As any provisions by statute for the rendition of judgment against a person not a citizen or resident of a state, and not served with process or voluntarily appearing to an action against him therein, would not be according to the course of the common law, it must follow that he would be entitled to show that he was not such citizen or resident, and had not been served or appeared by himself or attorney.

Accordingly, it was held in Needham v. Thayer, 147 Mass. 536, that a defendant in an action brought in Massachusetts on a judgment in personam in that state, might set up in defense that he was at the time the original action was brought a nonresident, and neither was served personally with process nor appeared therein.

And so in New York, when a judgment of a court of that state was drawn in question, which had been entered against a nonresident, who was not, during the pendency of the proceedings, within the jurisdiction of the state. Vilas V. Plattsburgh & Montreal Railroad Company, 123 N. Y. 440 [9 L. R. A. 844]. There the rule that domestic judgments against a party not served, but for whom an attorney appeared without authority, cannot be attacked collaterally, was adhered to; yet the court of appeals declined to apply it to a case where the defendant was a nonresident and not within the jurisdiction during the pendency of the proceedings, such judgments being held to be not strictly domestic but to fall within the principle applicable to judgments of the courts of other states, in respect of which Andrews, J., delivering the opinion of the court said: "It is well settled that in an action brought in our courts on a judgment of a court of a sister state the jurisdiction of the court to render the judgment may be assailed by proof that the defendant was not served and did not appear in the action, or where an ap[570]pearance was entered by an attorney, that the appearance was unauthorized, and this even where the proof directly contradicts the

much in point, Chief Justice Stayton states the case as follows:


We do not understand any different view to obtain in Texas. In Fowler v. Morrill, 8 Tex. 153, it was held that the acceptance of service of process by an attorney is only prima facie evidence of his authority. In Parker v. Spencer, 61 Tex. 155, the court decided that a judgment did not affect a party who had not been served, but who, on the record, appeared by an attorney not authorized to so appear, and it was said: "And as he had not been made a party to the suit by any of the modes known to the law, he would not be bound by the judgment. But he had the option either to have it vacated by direct proceedings or else to treat it as void in any collateral proceeding where rights might be asserted against him by reason of the same."

In Bender v. Damon, 72 Tex. 92, which is

"The petition alleges substantially the facts necessary to be alleged in an action of trespass to try title, and the petition was sc indorsed. Had it done this and no more, there could have been no ground for controversy in the court below as to its jurisdiction to hear and determine the cause, nor as to the sufficiency of the petition on general demurrer. The appellant, however, sought to remove cloud from his title, which a judg ment in his favor in an action of trespass to try title would have accomplished as against the defendants, and to obtain this relief he undertook to show that appellees were claiming under a sheriff's sale and deed under an execution issued from the district court for Navarro county, on a judgment rendered by that court against him and in favor of S. J. T. Johnson, all of which he claimed were invalid.

"Some of the facts which he alleged to show the invalidity of that judgment, execution, and sale, were such as might entitle him, by a proper proceeding, to have had them vacated, but not such as to render them void.

"The petition, however, went further, and alleged facts which, if true, would render the judgment void. It alleged that the plaintiff was a nonresident of this state; that he never was cited to appear, and did[571] not appear in person or by attorney in the proceeding in which the judgment in favor of Johnson and against himself was dered; and that appellees claimed through an execution and sale made under a judgment so rendered. If these averments be true the judgment was void, and no one could acquire rights under it."


We think the circuit court was clearly right in admitting evidence to contradict the recital that Newell was a citizen and resident of Texas, and to show that the attorney had no authority to represent him.

Nor can this judgment be held conclusive on the theory that the suit of McGrael v. Newell was in the nature of a proceeding in rem. The property was not taken into custody by attachment, or otherwise, and the suit depended entirely on the statutes of Texas providing the procedure for the trial of the title to real estate, which contained at that time no particular provision for bringing in nonresidents of the state. There was a statute providing generally that in suits against nonresidents service could be had by publication, and that statute provided that if the plaintiff, or his agent, or attorney, when the suit was instituted, or during its progress, made affidavit before the clerk of the court that defendant was not a resident of the state of Texas, or that he was absent from the state, or that he was a transient person, or that his residence was unknown, then a citation should issue which should be published in a newspaper. Acts Tex. 1848, 106, chap. 95. This statute was applicable to all suits, and so far as actions against nonresidents were personal, judg ment on citation by publication would not be conclusive. And the law also required

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that where any judgment was rendered on | CHARLES E. POPE, Receiver of Chicago &
service by publication, the court should make South Atlantic Railroad Company, Appt.,
out and incorporate with the records of the
case a statement of the facts proved therein
on which the judgment was founded. Acts
Tex. 1846, 395. It is true that "it was with-
in the power of the legislature of Texas to
provide for determining and quieting the title
to real estate within the limits of the state
and within the jurisdiction of the court, aft-
er actual notice to all known claimants, and
notice by publication to all other persons."
[872]Hamilton v. Brown, *161 U. S. 256, 274 [40:
691, 699]; Arndt v. Griggs, 134 U. S. 316
[33: 918]. But it would seem that there was
no such statute at the time of the commence-
ment of the McGrael suit, and that suit could
only be regarded as a personal action and
coming within the rule laid down in Pen-
noyer v. Neff, 95 U. S. 714 [24: 565].

Moreover, the record in McGrael v. Newell
shows that the suit was not brought as against
a nonresident of the state, it being alleged
in plaintiff's petition that defendant resided
in Brazoria county, Texas. So that even if
it were held that the statutes of the state,
taken together, authorized suits of this
character to be brought against nonresidents
as proceedings in rem, this cannot be as-
serted as to this suit; and it affirmatively ap-
peared that no citation by publication could
have been had. The citation prayed for was
to be addressed to the proper officer of Bra-
zoria county, to be served on defendant as
a resident of that county; no citation by Submitted
publication was asked for, and no rec-
ord of the facts on which the case was
tried was kept as required by statute,
and the whole case was tried as a case
against a resident of Brazoria county ap-
pearing by attorney. The statute at that
time provided that "any party to a suit, his
agent or attorney, may waive the necessity
of the issuance or the service of any writ or
process required to be served on him in the
suit, and accept such service thereof; pro-
vided, that such waiver or acceptance shall
be made in writing, signed by such party,
his agent or attorney, and filed among the
papers of the suit, as a record." Acts Tex.
1846, 367. The record here showed no such
acceptance or waiver of service.

Treated as a personal action, brought as against a resident, when the facts appeared that defendant was not a resident of the state of Texas and was not served in that state, and had not appeared by attorney, then the judgment ceased to be binding. The result is the same if the suit were regarded as brought under a statute making provision for the bringing of suits to settle the title to lands in Texas, since that proceeding would have been purely statutory, and not according to the course of the common law, and the record did not show that it was instituted in the manner required by the stat[578]ute, or appearance *had or waived as required, or that the jurisdiction of the court in fact so attached as to authorize the court to render the judgment. Galpin v. Page, 18 Wall. 350 [21: 959].

It follows that the question propounded must be answered in the affirmative.


(See S. C. Reporter's ed. 573–582.)

When decree of circuit court of appeals is final-ancillary suit depends upon jurisdiction of main suit-order appointing re



The decree of the circuit court of appeals is final by the act of March 3, 1891, when the jurisdiction of the circuit court in which the sult was commenced depended entirely on diverse citizenship.


A suit brought by a receiver appointed by

a Federal court, to accomplish the ends sought by the suit in which the appointment was made, is ancillary so far as the jurisdiction of the Federal court is concerned; and where the jurisdiction of the main suit depends on diverse citizenship, and the decree of the circuit court of appeals is therefore final therein, the judgment and decree of the ancillary litigation are also final.


The mere order of a Federal court appointIng a receiver does not enable the receiver to invoke Federal jurisdiction, independently of the ground of jurisdiction of the suit in which the order was entered.

[No. 303.]

January 30, 1899. Decided
April 3, 1899.


PPEAL from a decree of the United States Circuit Court of Appeals for the Seventh Circuit reversing a money decree of the Circuit Court of the United States for the District of Indiana in favor of Charles E. Pope, receiver of the Chicago & South Atlantic Railroad Company in a suit in equity brought by him against the Louisville, New Albany, & Chicago Railway Company, defendant, to recover certain property and property rights, held and claimed by defendant. The decree of reversal by the Circuit Court of Appeals gives instructions to dismiss the suit. On motion to dismiss the appeal. Dismissed.

See same case below, 53 U. S. App. 332; also same case, 169 U. S. 737, 42 L. ed. 1216.

Statement by Mr. Chief Justice Fuller: Ball and Pettit filed their bill in the circuit court of the United States for the northern district of Illinois alleging that Ball was a citizen of Indiana and that Pettit was a citizen of Wisconsin, and that defendants were citizens of Indiana and Illinois, which suit was discontinued as to Ball, leaving Pettit, a citizen of Wisconsin, the sole complainant. Pope was appointed, in substitution for one Fish, receiver of the *Chicago & [574} South Atlantic Railroad Company of Illinois, the order containing, among other things, the following:

"And it is further ordered that the defendant, the said Chicago & South Atlantic Railroad Company, or whoever may have posses sion thereof, do assign, transfer, and deliver

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