in the class defined as "damage in tran- | Attachment sit." Respondent contends that under § 10 of the Bills of Lading Act [August 29, 1916], chap. 415, 39 Stat. at L. 538, 540, Comp. Stat. § 8604ee, Fed. Stat. Anno. Supp. 1918, p. 74, it was not necessary to comply with the requirement of the bill of lading. The point is without merit. That section provides: "Where a carrier delivers goods to one who is not lawfully entitled to the possession of them, the carrier shall be liable to anyone having a right of property or possession in the goods .." The rule of liability so declared is not inconsistent with the second proviso in § 20, which relates merely to the enforcement of liability. The provisions of both acts are to be read together, and applied in harmony with the bill of lading. More than nineteen months elapsed before respondent made any claim. There is nothing in the statutory provisions relied on by respondent to excuse its failure to make claim within the time specified in the shipping contract. affidavit jurisdiction effect. - defect in 2. Where a writ of attachment has been levied defects in the affidavit do not Judgment effect of recitals lateral attack. - col 3. Recitals in a judgment of a court of general jurisdiction, in a proceeding to set aside a conveyance of real estate as in fraud of creditors, that it appears to the satisfaction of the court "from the papers defraud, cannot be drawn in question in a collateral proceeding. and evidence" that the deeds were made to Constitutional law due process 4. Where a court has acquired jurisdiction of a suit to set aside a deed as in fraud of creditors by the levying of an attachment and a decree nisi has been entered upon the order of publication, a deed void will not deprive the court of ju failure to hear proof before adjudging the risdiction nor constitute a denial of due process of law. [No. 58.] vember 16, 1925. Judgment reversed and cause remanded Submitted October 16, 1925. Decided Nofor further proceedings not inconsistent with this opinion. [163] JOHN W. STEPHENSON, Emma APPEAL by complainants from a de of the District Court of the United States for the Southern District of West Virginia dismissing a bill filed to set aside a sale of real estate for lack of due process of law. Affirmed. The facts are stated in the opinion. Messrs. Edward W. Knight and Harold A. Ritz submitted the cause for appellants. Messrs. A. J. Horan, Lon H. Kelly, and Herman L. Bennett were on the brief: There was no completed substituted service of process as to defendants. McCoy v. McCoy, 9 W. Va. 443; Coal River Nav. Co. v. Webb, 3 W. Va. 438; Styles v. Laurel Fork Oil & Coal Co. 45 W. Va. 374, 32 S. E. 227; Laflin v. Gato, 52 Fla. 529, 42 So. 387; Batre v. Auze, 5 Ala. 173; Zecharie v. Bowers, 3 Smedes & M. 641; McKey v. Cobb, 33 Miss. 533; Storde v. Storde, 6 Idaho, 67, 96 Am. St. Rep. 249, 52 Pac. 161. Note.-On conclusiveness of judgments | generally see notes to Sharon v. Terry, Ĭ L.R.A. 572; Bollong v. Schuyler Nat. Bank, 3 L.R.A. 142; Wiese v. San Francisco Musical Fund Soc. 7 L.R.A. 577; Morrill v. Morrill, 11 L.R.A. 155; Shores v. Hooper, 11 L.R.A. 308; Bank of Unit-writ, is Emma Thomson. ed States v. Beverly, 11 L. ed. U. S. 76; Johnson Steel Street R. Co. v. Wharton, 38 L ed. U. S. 429; and Southern P. R. Co. v. United States, 42 L. ed. U. S. 358. The order of publication is defective because in the caption thereto appears the name of Emma Thomas, whereas the name of one of the defendants to that suit, who is one of the plaintiffs to this 19 R. C. L. 1335; Schoenfeld v. Bourne, 159 Mich. 139, 30 L.R.A. (N.S.) 122, 123 N. W. 537; Granger v. Judge of Superior Ct. 44 Mich. 384, 6 N. W. 848; Steere v. Vanderberg, 67 Mich. 530, 35 N. W. 110; | Adams v. Cowles, 95 Mo. 501, 6 Am. St. The circuit court of Nicholas county did not acquire jurisdiction for the reason that the affidavit for the attachment is insufficient and void, and, there being no other basis for the suit in Nicholas county, the court's jurisdiction never attached to the cause of action. Deming Nat. Bank v. Baker, 83 W. Va. 429, 98 S. E. 438; Citizens Nat. Bank v. Dixon, 94 W. Va. 21, 117 S. E. 685; Pelley v. Hibner, 93 W. Va. 169, 118 S. E. 923. While one of the defendants is described as Emma Thomas in the caption of the order of publication, nevertheless she is properly described in the body of the order of publication, and is further required to appear in her own proper name in the notice. Grannis v. Ordean, 234 U. S. 383, 58 L. ed. 1363, 34 Sup. Ct. Rep. 779; 19 R. C. L. 1337, ¶ 17. The presumption is in favor of the appellees that the notice of the order of publication was posted, especially in view of the fact that the decree of the circuit court shows that the order of publication was duly executed. Styles v. Laurel Fork Oil & Coal Co. 45 W. Va. 374, 32 S. E. 227; Craig v. Setting aside the deeds filed with the Sebrell, 9 Gratt. 131; Moore v. Holt, 10 plaintiff's bill, as fraudulent and void, Gratt. 284; Scott v. Ludington, 14 W. and decreeing the lands conveyed there- Va. 387; Taylor v. Cox, 32 W. Va. 149, by to sale, without hearing any evidence 9 S. E. 70; Voorhees v. Jackson, 10 Pet. in support of the said bill, was a denial of 449, 9 L. ed. 490; Applegate v. Lexingdue process of law to the plaintiffs here, ton & C. County Min. Co. 117 U. S. 255, by the circuit court of Nicholas county, 29 L. ed. 892, 6 Sup. Ct. Rep. 742; Balland was in violation of the 14th Amend-ard v. Hunter, 204 U. S. 241, 51 L. ed. ment to the Constitution of the United 461, 27 Sup. Ct. Rep. 261. States. Taylor, Due Process of Law, p. 333; Windsor v. McVeigh, 93 U. S. 274, 23 L. ed. 914; Hovey v. Elliott, 167 U. S. 409, 42 L. ed. 215, 17 Sup. Ct. Rep. 341; Parsons v. Russell, 11 Mich. 113, 83 Am. Dec. 728; Remer v. Mackay (C. C.) 35 Fed. 86; Ex parte Samuel, 82 W. Va. 486, 96 S. E. 95; Hyde v. Shine, 199 U. S. 62-84, 50 L. ed. 90-97, 25 Sup. Ct. Rep. 760. Mr. J. H. McClintic submitted the cause for appellees. Mr. A. N. Breckenridge was on the brief: The circuit court of Nicholas county had jurisdiction. Watkins v. Wortman, 19 W. Va. 78; Murphy v. Fairweather, 72 W. Va. 14, 77 S. E. 321; Gilbert v. Peppers, 65. W. Va. 355, 36 L.R.A. (N.S.) 1181, 64 S. E. 361; Dent v. Pickens, 59 W. Va. 274, 53 S. E. 154; Moore v. Tearney, 62 W. Va. 72, 57 S. E. 263; Goshorn v. Snodgrass, 17 W. Va. 777; Danser v. Mallonee, 77 W. Va. 26, 86 S. E. 895; Tennant v. Fretts, 67 W. Va. 569, 29 L.R.A. (N.S.) 625, 140 Am. St. Rep. 979, 68 S. E. 387; Birch v. Covert, 83 W. Va. 752, 99 S. E. 92; Witten v. St. Clair, 27 W. Va. 762; The affidavit for attachment was sufficient. Todd v. Gates, 20 W. Va. 464; Duty v. Sprinkle, 64 W. Va. 39, 60 S. E. 882; Flannigan v. Monongahela Tie & Lumber Co. 77 W. Va. 158, 87 S. E. 165. Even if the affidavit is irregular in the particulars claimed by appellants, nevertheless the court has jurisdiction. Cooper v. Reynolds, 10 Wall. 308, 19 L. ed. 931; Hall v. Hall, 12 W. Va. 1; Miller v. White, 46 W. Va. 67, 76 Am. St. Rep. 791, 33 S. E. 332; McIntosh v. Augusta Oil Co. 47 W. Va. 837, 35 S. E. 860; Caswell v. Caswell, 84 W. Va. 582, 100 S. E. 482. The circuit court having acquired jurisdiction, its decrees are not void, but merely voidable. McGrew v. Maxwell, 80 W. Va. 718, 94 S. E. 395; Voorhees v. Jackson, 10 Pet. 449, 9 L. ed. 490; McIntosh v. Augusta Oil Co. 47 W. Va. 836, 35 S. E. 860; Mantz v. Hendley, 2 Hen. & M. 308; Capehart v. Dowery, 10 W. Va. 130; Danser v. Mallonee, 77 W. Va. 26, 86 S. E. 895; Elkins Nat. Bank v. Simmons, 57 W. Va. 1, 49 S. E. 893; Dulin v. McCaw, 39 W. Va. 721, 20 S. E. 681; Taylor v. Cox, 32 W. Va. 148, 9 S. E. 70. Mr. Justice Sanford delivered the it was based lacked the required ceropinion of the court: tainty and was invalid; and 2nd, because under the law of West Virginia there can be no valid decree in a suit in which no personal service has been had without proof of the facts upon which it rests, and the court was without jurisdiction to enter the decree setting aside the deeds and ordering the sale, for the reason that no proof was offered that the deeds were fraudulent. The appellants brought this suit in equity in the District Court to set aside certain proceedings in a Circuit Court of West Virginia, whose validity they challenged, inter alia, for repugnancy to the due process clause of the 14th Amendment. The bill was dismissed by the District Court, upon defendants' motion, without opinion. This direct appeal was allowed, March 31, 1924, under § 238 of the Judicial Code. their title be removed; and that they be adjudged to be the owners of the lands. The bill further alleged that the action of the Circuit Court in adjudging that The case made by the bill and exhibits the deeds were fraudulent, without peris this: The plaintiffs are non-residents sonal service of process or hearing any of West Virginia. Four of them claim evidence or having any trial upon the to be the owners of certain undivided question, and decreeing the sale of the interests, in lands in Nicholas County, lands, was a denial of due process of West Virginia, conveyed to them by deeds law to the plaintiffs in violation of the from their co-plaintiff W. B. Stephenson, 14th Amendment; and it prayed that the executed in good faith and for valuable decrees directing and confirming the sale considerations. The defendant Cawley, of the lands and the commissioners' deed a creditor of W. B. Stephenson holding thereto, be decreed to be null and void; unsatisfied judgments against him, that the cloud arising therefrom upon brought a suit in equity against the plaintiffs in the Circuit Court of the county to set aside the deeds as fraudulent and [166] 1. Assuming, without deciding, sell the lands to satisfy the judgments. that notwithstanding the constructive The plaintiffs were proceeded against as service of process by the order of publinon-residents, by an order of publication, cation, the jurisdiction of the court over without personal service of process. An the lands depended upon the attachment, order of attachment was also issued and we find no invalidity in the affidavit on levied upon the lands. The plaintiffs not having appeared within the time required by the order of publication, a decree nisi was entered and set for hearing; and thereafter a decree was [165] entered adjudging that the deeds from W. B. Stephenson were made to defraud his creditors, setting the same aside as to the debt to Cawley, and directing a sale of the lands in satisfaction of the judgments. They were purchased by the defendants Kirtley and Herold at the commissioners' sale. This sale was firmed by a subsequent decree; and a deed was executed by the commissioners to the purchasers, who entered into possession of the lands. The plaintiffs, who under the laws of West Virginia were allowed to appear and make defense to the suit within two years from the date of the final decree, had no knowledge of these proceedings until after this time had expired. con This was which the order of attachment issued. The bill alleged that these proceedings were null and void: 1st, because the Circuit Court did not have jurisdiction to enter the decrees, since under the laws of West Virginia the order of attachment upon which its jurisdiction depended was 2. It is recited in the decree of sale that void and conferred no jurisdiction for it appeared to the satisfaction of the the reason that the affidavit upon which court "from the papers and evidence" innocent when done, which makes change of proce dure as ex post facto law. 2. Statutory changes in the mode of trial or the rules of evidence which do not deprive the accused of a defense, and which operate only in a limited and unsubstantial manner to his disadvantage, are not Constitutional law prohibited as ex post facto laws. ex post facto providing joint trial for persons jointly indicted. that the deeds from W. B. Stephenson, was were made to defraud his creditors. The more burdensome the punishment for a present suit is a collateral proceeding to crime after its commission, or which deset aside the sale made by the Circuit Prives the one charged with crime of any defense available according to law at the Court, Ludlow v. Ramsey, 11 Wall. 587, time when the act was committed, is pro20 L. ed. 218, a court of general jurisdic- hibited as ex post facto. tion; and the recitals in its decree, which Constitutional law import verity, cannot be drawn in question herein. Ballard v. Hunter, 204 U. S. 241, 265, 51 L. ed. 461, 475, 27 Sup. Ct. Rep. 261. Furthermore, as the court had acquired jurisdiction by the levy of the writ of attachment and a decree nisi had been entered upon the order of publication, a failure to hear proof before adjudging that the deeds were fraudulent and ordering the sale, would neither have deprived the court of its jurisdiction [167] nor constituted a denial of due process. The allegations of the complaint might be established either by the introduction of proof or by admission through the default; and error or irregularity in this respect would neither constitute ground for setting aside the decree which the court had acquired jurisdiction to render, nor take from it the attribute of due process. Ballard v. Hunter, supra, pp. 250, 258 [51 L. ed. 465, 473, 27 Sup. Ct. Rep. 261]. 3. This disposes of all the grounds upon which the validity of the proceedings was challenged by the bill. We therefore neither consider other matters urged in the appellants' brief relating to the alleged invalidity of the order of publication, nor the defense of good faith purchase relied upon in the brief of appellees. We find no want of jurisdiction in the Circuit Court by reason of the matters alleged in the bill, nor want of due process invalidating the proceedings under the 14th Amendment. The decree of the District Court is affirmed. 3. A law providing a joint trial for persons jointly indicted for an offense committed before the statute was passed, while leaving discretionary power in the court to direct separate trials for good cause shown, is not invalid as an ex post facto law. [Nos. 247 and 248.] Submitted on motion to dismiss or affirm October 5, 1925. Decided November 16, 1925. ΟΝ MOTION to dismiss or affirm a judgment brought on writ of error from the Supreme Court of the State of Ohio which affirmed convictions by the Court of Common Pleas for Hamilton County for the crime of embezzlement. Affirmed. See same case below, No. 247, 111 Ohio St. 838, 146 N. E. 316; No. 248, 111 Ohio St. 839, 146 N. E. 315. The facts are stated in the opinion. Mr. John Wilson Brown, III, submitted the cause for defendants in error, in support of the motion. Messrs. Charles S. Bell, Nelson Schwab, and Louis Schneider filed a brief: The application of § 13,677, as amended, to the case of the plaintiff in error, violates no provision of the Federal Constitution. Hopt v. Utah, 110 U. S. 574, 590, 28 L. ed. 262, 268, 4 Sup. Ct. Rep. 202, 4 Am. Crim. Rep. 417; Thompson v. Missouri, 171 U. S. 380, 43 L. ed. 204, 18 Sup. Ct. Rep. 922; Mallett v. North Carolina, 181 U. S. 589, 45 L. ed. 1015, 21 Sup. Ct. Rep. 730, 15 Am. Crim. Rep. 241. Note. Generally, as to what laws are ex post facto--see notes to Anderson v. O'Donnell, 1 1.R.A. 632; State v. Cooler, 3 L.R.A. 181; Calder v. Bull, 1 L. ed. U. S. 648; Sturges v. Crowninshield, 4 L. ed. U. S. 529; Otoe County v. Baldwin, 28 L. ed. U. S. 331; Re Medley, 33 L. ed. U. S. 835; and Barnitz v. Beverly, 41 L ed. U. S. 94. The various courts erred in not granting Beazell a separate trial. Messrs. Province M. Pogue and Harry |ton County, Ohio, for the crime of emM. Hoffheimer submitted the cause for bezzlement, a felony. On February 13, plaintiff in error in No. 247, in opposi- 1923, the date of the offense as charged, tion to the motion. Mr. Thomas L. Ohio General Code, § 13,677, provided: Pogue was on the brief: "When two or more persons are jointly indicted for a felony, on application to the court for that purpose, each shall be separately tried." In April of the same year, before the indictment, which was returned on October 25, this section was amended (110 Ohio Laws, 301) so as to provide: Bergin v. State, 31 Ohio St. 113; 12 C. J. § 803, p. 1097; Thompson v. Utah, 170 U. S. 343, 351, 352, 42 L. ed. 1061, 1066, 1067, 18 Sup. Ct. Rep. 620; Duncan v. Missouri, 152 U. S. 378, 38 L. ed. 486, 14 Sup. Ct. Rep. 570; Re Medley, 134 [169] "When two or more persons U. S. 160, 33 L. ed. 835, 10 Sup. Ct. Rep. are jointly indicted for a felony, except 384; Kring v. Missouri, 107 U. S. 221-a capital offense, they shall be tried 224, 27 L. ed. 506, 507, 2 Sup. Ct. Rep. 443; 6 R. C. L. § 284, p. 297; Mallett v. North Carolina, 181 U. S. 589, 45 L. ed. 1015, 21 Sup. Ct. Rep. 730, 15 Am. Crim. Rep. 241; Kring v. Missouri, 107 U. S. 221, 27 L. ed. 506, 2 Sup. Ct. Rep. 443; Rairden v. Holden, 15 Ohio St. 207, 209; Society for Propagation of Gospel v. Wheeler, 2 Gall. 139, Fed. Cas. No. 13,156; Peters v. McWilliam, 36 Ohio St. 162; State v. Morrow, 90 Ohio St. 202, 107 N. E. 515. The bringing of certain things into the case which were not a part of the case against Beazell when the state rested and he refused to introduce testimony, and which never could have been a part of the case against him, was a denial of his substantial rights. jointly, unless the Court for good cause shown, on application therefor by the prosecuting attorney, or one or more of said defendants order that one or more of said defendants shall be tried separately." By another section, the amended Act was made applicable to trials for offenses committed before the amendment. The defendants severally made motions for separate trials on the ground that their defenses would be different; that each would be prejudiced by the introduction of evidence admissible against his co-defendant, but inadmissible as to him; and that they were entitled to separate trials as a matter of right, specifically charging that as applied to their own indictment and trial, "the amendment to Crain v. United States, 162 U. S. 625, the Statutes of Ohio making the granting 644, 40 L. ed. 1097, 1102, 16 Sup. Ct. of said application for a separate trial Rep. 952; Thompson v. Utah, 170 U. S. discretionary with the trial court, is an 352, 42 L. ed. 1067, 18 Sup. Ct. Rep. 620; ex post facto law within the restrictions Cooley, Const. Lim. 373; Frisby v. Unit-imposed by article 1, § 10 of the Constied States, 38 App. D. C. 22, 37 L.R.A. tution of the United States," which pro(N.S.) 98. vides that "No State shall Mr. Frank F. Dinsmore submitted the cause for plaintiff in error in No. 248, in opposition to the motion: The statute of the state of Ohio, making it discretionary for the trial judge, in cases of felony, to grant a separate trial, as applied to this case, constituted a violation of that clause of § 10, art. 1, of the Constitution of the United States, prohibiting the states from passing any ex post facto laws. Re Medley, 134 U. S. 160, 33 L. ed. 835, 10 Sup. Ct. Rep. 384; Thompson v. Utah, 170 U. S. 343, 352, 42 L. ed. 1061, 1067, 18 Sup. Ct. Rep. 620; Kring v. Missouri, 107 U. S. 221, 231, 232, 27 L. ed. 506, 510, 2 Sup. Ct. Rep. 443. Mr. Justice Stone delivered the opinion of the court: Plaintiffs in error were jointly indicted in the Court of Common Pleas of Hamil pass |