ever, that any defendant or defendants not actually personally notified as above provided may, at any time within one year after final judgment in any suit mentioned in this section, enter his appearance in said suit in said district court, and thereupon the said court shall make an order setting aside the judgment therein and permitting said defendant or defendants to plead therein on payment by him or them of such costs as the court shall deem just; and thereupon said suit shall be proceeded with to final judgment according to law."

This act is intended, in the cases covered by it, to regulate the suit by the location of the res; and consequently the district or residence of the plaintiff or defendant has nothing to do with it, though the controversy must be one of which the court has jurisdiction from diversity of citizenship or otherwise. Suit, however, may be brought where the property is, although neither of the parties resides there. The statute covers many different kinds of suits.

Suits to Enforce Any Legal or Equitable Lien upon or Claim to Real or Personal Property in the District

75

A suit to quiet title comes under this provision. Also a suit for partition of land is treated as a claim to or suit to settle title to real estate.70 So, also, a suit to reach a fund in the hands of a trustee in the jurisdiction of the court." Suits to foreclose mortgages clearly come under the provision.

A suit to enforce a lien of a judgment on

74 GREELEY v. LOWE, 155 U. S. 58, 15 Sup. Ct. 24, 39 L. Ed. 69; Kentucky Coal Lands Co. v. Mineral Development Co. (C. C.) 191 Fed. 899, 912; Texas Co. v. Central Fuel Co., 194 Fed. 1, 114 C. C. A. 21. See "Courts," Dec. Dig. (Key-No.) § 269; Cent. Dig. § 809.

75 U. S. v. Southern Pac. Co. (C. C.) 63 Fed. 481. See "Courts," Dec. Dig. (Key-No.) § 269; Cent. Dig. § 809.

76 GREELEY v. LOWE, 155 U. S. 58, 15 Sup. Ct. 24, 39 L. Ed. 69. See "Courts," Dec. Dig. (Key-No.) § 269; Cent. Dig. § 809.

77 Goodman v. Niblack, 102 U. S. 556, 26 L. Ed. 229. See "Courts." Dec. Dig. (Key-No.) § 269; Cent. Dig. § 809.

78 Seybert v. Shamokin & Mt. C. Electric Railroad Co. (C. C.) 110 Fed. 810. See "Courts," Dec. Dig. (Key-No.) § 269; Cent. Dig. § 809.

.79

property within the district is covered by the statute; so, also, an action of ejectment.80

Suits to Remove Any Incumbrance or Lien or Cloud upon the Title to Real or Personal Property

82

A suit by a creditor of a corporation to set aside a conveyance made by the corporation comes under this provision of the act.81 A suit to remove a cloud upon a title caused by a tax sale is covered by the act. On the other hand, it is inapplicable to purely personal actions, as to suits to cancel contracts where no lien or claim or title to property is involved, and suits to abate a nuisance.83 The act is intended to give the right to enforce claims or liens existing before the institution of the suit, and hence it does not cover proceedings by foreign attachment, where the only lien arises from the institution of the suit itself. In the federal courts the proceeding by attachment is a mere incident to a personal suit against the owner, and cannot be brought unless the defendant can be served legally with process. Prior to the jurisdiction acts of 1887-88, process could be served on a defendant if found

84

79 De Hierapolis v. Lawrence (C. C.) 99 Fed. 321; Hultberg v. Anderson (C. C.) 170 Fed. 657. See "Courts," Dec. Dig. (Key-No.) § 269; Cent. Dig. § 809.

80 Spencer v. Kansas City Stockyards Co. (C. C.) 56 Fed. 741; Elk Garden Co. v. T. W. Thayer Co. (C. C.) 179 Fed. 556. See "Courts," Dec. Dig. (Key-No.) § 269; Cent. Dig. § 809.

81 Mellen v. Moline Malleable Iron Works, 131 U. S. 352, 9 Sup. Ct. 781, 33 L. Ed. 178. See "Courts," Dec. Dig. (Key-No.) § 269; Cent. Dig. § 809.

82 Dick v. Foraker, 155 U. S. 404, 15 Sup. Ct. 124, 39 L. Ed. 201. See "Courts," Dec. Dig. (Kcy-No.) § 269; Cent. Dig. § 809.

83 New York Life Ins. Co. v. Bangs, 103 U. S. 435, 26 L. Ed. 580; Ladew v. Tennessee Copper Co., 218 U. S. 357, 31 Sup. Ct. 81, 54 L. Ed. 1069. But it applies where the contracts are a lien or part of a chain of title. Citizens' Savings & Trust Co. v. Illinois C. R. Co., 205 U. S. 46, 27 Sup. Ct. 425, 51 L. Ed. 703. See "Courts," Dec. Dig. (Key-No.) §§ 269, 274; Cent. Dig. §§ 809, 814.

84 Ex parte DES MOINES & M. R. CO., 103 U. S. 794, 26 L. Ed. 461. Big Vein Coal Co. v. Read, 229 U. S. 31, 33 Sup. Ct. 694, 57 L. Ed. See "Courts," Dec. Dig. (Key-No.) §§ 269, 271; Cent. Dig. §§ 809, 810.

in a district, though he did not reside therein; under this last amendment this can no longer be done. On the other hand, even under this last amendment, suit can be brought within the district of the residence of the plaintiff, and accompanied by an attachment, if service can be obtained on the defendant. A suit for the specific performance of a contract has also been held not to come within the act, as a decree in such cases acts in personam, and not on the land and property itself.85 A suit to restrain the enforcement of a contract of sale of stock by a corporation to certain other defendants as illegal does not come within the act, as there is no question of title or claim in such a case. A suit by heirs against trustees under a will to recover a residue in their hands is not covered by the act.s Procedure under the Act

86

It is best, even as between two defendants of different districts in the same state, to follow the language of the act and secure an order from the court directing the absent defendant or defendants to appear, plead, answer, or demur by a time certain to be designated, and then to serve that order on the defendants, if practicable, and upon the person in charge of the property.88 But under sections 52, 54, and

55 of the Judicial Code the original process could be sent into another district in the same state and served. They ought, at least, to cover the case of defendants in different districts in the same state. If, however, original process cannot be served, and only the order of the court under

85 Municipal Inv. Co. v. Gardiner (C. C.) 62 Fed. 954. But the act would apply if any lien or charge on the land was reserved as part of the contract. Texas Co. v. Central Fuel Oil Co., 194 Fed. 1, 114 C. C. A. 21. See "Courts," Dec. Dig. (Key-No.) § 269; Cent. Dig. § 809.

86 Lengel v. American Smelting & Refining Co. (C. C.) 110 Fed. 12. See "Courts," Dec. Dig. (Key-No.) §§ 269, 272; Cent. Dig. §§ 809–811. 87 Fayerweather v. Ritch (C. C.) 89 Fed. 385. See "Courts," Det. Dig. (Key-No.) §§ 269-272; Cent. Dig. §§ 809–811.

88 Seybert v. Shamokin & Mt. C. Electric Railroad Co. (C. C.) 110 Fed. 810. See "Courts," Dec. Dig. (Key-No.) § 344; Cent. Dig. § 917.

89

this last act, such order can be sent not only into another district of the same state, but into any other part of the United States, and can be served upon the defendant, if practicable, wherever found. It is therefore necessary, first, to make some effort to find the defendant, and to serve on him the order of the court requiring him to appear and defend himself, and also to serve it upon the person in charge of the property. Only after that is done would it be allowable to resort to the substituted service of publication, and the court will probably require some proof of an attempt to locate the defendant before allowing the substituted service.

The act carries out the theory of procedings in rem under constructive, service, and makes it only binding as to the property itself in case there is no appearance. If there is an appearance, on the other hand, the suit becomes an ordinary suit in personam, and could be proceeded with by the plaintiff to a personal judgment.""

An important addition to the pre-existing law is embodied in section 56 of the Judicial Code, which confers certain extra-territorial powers on receivers of property situated in more than one district of the same circuit. It will be discussed in another connection.91

Section 58 of the Code permits the transfer of cases by consent from one division to another of the same district; and sections 59 and 60 for the proper disposition of cases on the formation of new districts or divisions.

89 Mellen v. Moline Malleable Iron Works, 131 U. S. 352, 9 Sup. Ct. 781, 33 L. Ed. 178. See "Courts," Dec. Dig. (Key-No.) § 344; Cent. Dig. § 917.

90 Cooper v. Reynolds, 10 Wall. 308, 19 L. Ed. 931; Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565. See "Courts," Dec. Dig. (Key-No.) § 344; Cent. Dig. § 917.

CHAPTER XIII

THE DISTRICT COURT (Continued)-ORIGINAL JURISDICTION (Continued)

107. 108.

109.

Same-Jurisdiction as Affected by Assignment.
Same-Devices to Confer Jurisdiction.

Jurisdiction as Incident to or Derivative from Other Grounds
of Jurisdiction.

SAME JURISDICTION AS AFFECTED BY ASSIGNMENT

107. The assignee of a chose in action arising out of contract cannot sue in the federal courts unless his

assignor could have sued there, except in certain cases named in the statute.

In addition to the qualification as to the right to sue in reference to residence of the plaintiff or defendant, there is a further qualification in the statute in reference to the character of the claim to be asserted. One of the clauses of section 24, par. 1, of the Judicial Code, provides:

"No district court shall have cognizance of any suit (except upon foreign bills of exchange) to recover upon any promissory note or other chose in action in favor of any assignee, or of any subsequent holder if such instrument be payable to bearer and be not made by any corporation, unless such suit might have been prosecuted in such court to recover upon said note or other chose in action if no assignment had been made."

The clause applies to any cause of action arising out of a contract and subsequently assigned. For instance, a suit to enforce specific performance of a contract cannot be