223 U.S. 261
THOMAS E. JACOB and Frank Hobson, Plffs. in Err.,
S. L. ROBERTS.
Argued January 25, 1912.
Decided February 19, 1912.
Mr. Sam Ferry Smith for plaintiffs in error. [223 U.S. 261, 262] Messrs. William J. Mossholder and Samuel Herrick for defendant in error.
Mr. Justice McKenna delivered the opinion of the court:
The question involved is whether a judgment quieting title to a piece of land in California, against plaintiffs in error, upon substituted process of the publication of the summons under the statutes of that state, constitutes due process of law under the 14th Amendment to the Constitution of the United States.
The judgment was rendered in 1897, and eight years afterwards the entry of judgment was set aside by the trial court upon petition of plaintiffs in error, on the ground that the facts set out in the affidavit for the order of publication did not show the due diligence required by 412 of the Code of Civil Procedure of the state. The order was reversed by the supreme court of the state. 154 Cal. 307, 97 Pac. 671.
The action against plaintiffs in error was brought by defendant in error in the superior court in the county of San Diego, state of California, by verified complaint on March 25, 1897, upon which summons was issued and returned not served because defendants in the action ( plaintiffs in error) could not be found. An amended complaint was filed April 3, 1897. It described the land as lots in the city of San Diego, of which it alleged that the plaintiffs, defendants in error here, were then and had been for a long time in possession, claiming title in fee. It also contained the usual allegations that the defendants, and each of them, claimed some estate or interest in the land, and that it was entirely without any right whatever. It was prayed that the defendants be required to set forth the nature of their or his claim, that it be determined by the decree of the court, and that they and each of them be forever enjoined from asserting any claim in and to the lands adverse to the plaintiffs. General relief was prayed.
Summons was issued and the sheriff's certificate of return [223 U.S. 261, 264] recited that 'after diligent search and inquiry' he was unable to find the 'defendants or either or any of them in this, San Diego, county.'
An affidavit for publication of summons was then presented to the court and filed. It recited the proceedings, including the issue of the summons and its return by the sheriff, as we have stated, and further set forth the following, among other matters:
The affidavit also stated that inquiry was made of certain county and city officers, and that they all-- 'stated to affiant that they did not know the residence of the defendants, or either of them, their postoffice [223 U.S. 261, 265] ADDRESS, OR WHERE THEY COULD BE FOUND; ANd none of the above-named parties had heard of the postoffice address or residence of the defendants, or either of them, since they have resided in the said city of San Diego.
An order of publication was duly made, and the summons duly published in accordance therewith. Judgment by default was subsequently duly entered.
The assignments of error all express the contention that the trial court was without jurisdiction to render the judgment against plaintiffs in error, and that hence their property has been taken without due process of law.
Undoubtedly, as contended by plaintiffs in error, the essential element of due process of law is an opportunity to be heard, and a necessary condition of such opportunity is notice. Simon v. Craft, 182 U.S. 427 , 45 L. ed. 1165, 21 Sup. Ct. Rep. 836. But personal notice is not in all cases necessary. There may be, and necessarily must be, some form of constructive service. Ballard v. Hunter, 204 U.S. 241 , 51 L. ed. 461, 27 Sup. Ct. Rep. 261. Upon this, however, we do not enlarge, as we do not understand plaintiffs in error contest it. They recognize that substituted service of judicial process may be authorized, but they contend that it can only be authorized when 'it is impossible or impractical to obtain actual service, and when so authorized, the substituted service provided for in the statute must be of such character that it will be reasonably probable that the party whose property is placed in jeopardy [223 U.S. 261, 266] will be apprised of the pendency of the action and will be afforded a reasonable opportunity to appear therein and make his defenses.' (The italics are ours.) We do not understand that plaintiffs in error attack the kind or time of publication, as not giving a reasonable probability of notice or opportunity to be heard, but attack the showing upon which it was made; in other words, that the showing was not sufficient to authorize the publication of notice, the showing not being legally sufficient to justify a resort to that form of notice. It is true plaintiffs in error say that 'the designation of the newspaper and the length of time of publication must necessarily depend upon the residence of the defendant, or, at least, his probable whereabouts, unless it is disclosed by the affidavit that plaintiff has no knowledge on the subject, and that he has exercised due diligence to inform himself.' These quotations from the argument of plaintiffs in error we make as exhibiting the elements of their contentions.
We make no reference to the statute of the state, as that, as written, is not attacked except, it may be, as it is applied by the supreme court of the state in this and prior decisions. We say 'prior decisions,' because the court puts its ruling explicitly on one of its prior decisions, and rejects the contention that it had overruled other decisions.
We now turn to what the papers in the case exhibit and what they explicitly or impliedly establish. The property involved were lots in the city of San Diego, of which the plaintiffs in the action, defendants in error here, were in possession at the time of commencing the action, and had been for a long time. The fact has some force. San Diego was of size and importance enough to make it worth while for those having interest in property to assert it. Plaintiffs in error, however, permitted defendants in error to be in possession of property which they now say was and is theirs. Why, they do not explain, nor [223 U.S. 261, 267] where they were. They rest upon the face of the papers, and they having that right, we will consider the sufficiency of the papers under the statute.
We have set out the affidavit. It shows inquiry of the whereabouts of plaintiffs in error of their former neighbors and other residents of San Diego. One of them replied that he had not heard of them, of their residence or postoffice address, for over twenty-five years. Another also had not heard from them and did not believe they were in the state. Inquiry was also made of nineteen county officers and three state officers, sheriffs, county clerks, tax collectors, county and state; assessors, county and state; and of the postmasters of the state. Neighbors, residents, and officers who, in the intercourse and business of life would almost necessarily come in contact with plaintiffs in error or hear from them, had no knowledge of them. It may, however, be said, and indeed is said, that other parts of the state were not searched, and that this was necessary, as the process of the court could run to every county in the state. The requirement is extreme and we are cited to no cases in which it is decided to be necessary. The affidavit shows, besides, that defendant in error made diligent inquiry to find plaintiffs in error, and had no knowledge of their residence or postoffice address, or of either of them, or where they or either of them could be found.
We think plaintiffs in error were afforded due process.