95 U.S.

714
Pennoyer v. Neff ()
Argued:
Decided:
Syllabus
1. A statute of Oregon, after providing for service of summons upon parties or their representatives,
personally or at their residence, declares that, when service cannot be thus made, and the
defendant, after due diligence, cannot be found within the State, and
that fact appears, by affidavit, to the satisfaction of the court or judge thereof, and it, in like manner,
appears that a cause of action exists against the defendant, or that he is a proper party to an action
relating to real property in the State, such court or judge may grant an order that the service be
made by publication of summons . . . when the defendant is not a resident of the State, but has
property therein, and the court has jurisdiction of the subject of the action,
-- the order to designate a newspaper of the county where the action is commenced in which the
publication shall be made -- and that proof of such publication shall be "the affidavit of the printer, or
his foreman, or his principal clerk."
Held, that defects in the affidavit for the order can only be taken advantage of on appeal, or by some
other direct proceeding, and cannot be urged to impeach the judgment collaterally, and that the
provision as to proof of the publication is satisfied when the affidavit is made by the editor of the
paper.
2. A personal judgment is without any validity if it be rendered by a State court in an action upon a
money demand against a nonresident of the State who was served by a publication of summons, but
upon whom no personal service of process within the State was made, and who did not appear; and
no title to property passes by a sale under an execution issued upon such a judgment.
3. The State, having within her territory property of a nonresident, may hold and appropriate it to
satisfy the claims of her citizens against him, and her tribunals may inquire into his obligations to the
extent necessary to control the disposition of that property. If he has no property in the State, there is
nothing upon which her tribunals can adjudicate.
4. Substituted service by publication, or in any other authorized form, is sufficient to inform a
nonresident of the object of proceedings taken where [p715] property is once brought under the
control of the court by seizure or some equivalent act, but where the suit is brought to determine his
personal rights and obligations, that is, where it is merely in personam, such service upon him is
ineffectual for any purpose.
5. Process from the tribunals of one State cannot run into another State and summon a party there
domiciled to respond to proceedings against him, and publication of process or of notice within the

State in which the tribunal sits cannot create any greater obligation upon him to appear. Process
sent to him out of the State, and process published within it, are equally unavailing in proceedings to
establish his personal liability.
6. Except in cases affecting the personal status of the plaintiff, and in those wherein that mode of
service may be considered to have been assented to in advance, the substituted service of process
by publication allowed by the law of Oregon and by similar laws in other States where actions are
brought against nonresidents is effectual only where, in connection with process against the person
for commencing the action, property in the State is brought under the control of the court and
subjected to its disposition by process adapted to that purpose, or where the judgment is sought as
a means of reaching such property or affecting some interest therein; in other words, where the
action is in the nature of a proceeding in rem.
7. Whilst the courts of the United States are not foreign tribunals in their relations to the State courts,
they are tribunals of a different sovereignty, and are bound to give a judgment of a State court only
the same faith and credit to which it is entitled in the courts of another State.
8. The term "due process of law," when applied to judicial proceedings, means a course of legal
proceedings according to those rules and principles which have been established by our
jurisprudence for the protection and enforcement of private rights. To give such proceedings any
validity, there must be a competent tribunal to pass upon their subject matter, and if that involves
merely a determination of the personal liability of the defendant, he must be brought within its
jurisdiction by service of process within the State, or by his voluntary appearance.
This action was brought by Neff against Pennoyer for the recovery of a tract of land situated in
Multnomah County, Oregon. Pennoyer, in his answer, denied Neff's title and right to possession, and
set up a title in himself.
By consent of parties, and in pursuance of their written stipulation filed in the case, the cause was
tried by the court, and a special verdict given, upon which judgment was rendered in favor of Neff;
whereupon Pennoyer sued out this writ of error.
The parties respectively claimed title as follows: Neff under a patent issued to him by the United
States, March 19,[p716] 1866; and Pennoyer by virtue of a sale made by the sheriff of said county,
under an execution sued out upon a judgment against Neff, rendered Feb. 19, 1866, by the Circuit
Court for said county, in an action wherein he was defendant and J. H. Mitchell was plaintiff. Neff
was then a nonresident of Oregon.
In Mitchell v. Neff, jurisdiction of Neff was obtained by service of summons by publication. Pennoyer
offered in evidence duly certified copies of the complaint, summons, order for publication of
summons, affidavit of service by publication, and the judgment in that case, to the introduction of
which papers the plaintiff objected because, 1, said judgment isin personam, and appears to have
been given without the appearance of the defendant in the action or personal service of the
summons upon him, and while he was a nonresident of the State, and is, therefore, void; 2, said

judgment is notin rem, and therefore constitutes no basis of title in the defendant; 3, said copies of
complaint, &c., do not show jurisdiction to give the judgment alleged, either in rem or personam; and,
4, it appears from said papers that no proof of service by publication was ever made, the affidavit
thereof being made by the "editor" of the "Pacific Christian Advocate," and not by "the printer, or his
foreman or principal clerk." The court admitted the evidence subject to the objections.
The finding of the court in regard to the facts bearing upon the asserted jurisdiction of the State court
is as follows: -That, on Nov. 13, 1865, Mitchell applied to said Circuit Court, upon his own affidavit of that date, for
an order allowing the service of the summons in said action to be made upon Neff by publication
thereof, whereupon said court made said order, in the words following:
Now, at this day, comes the plaintiff in his proper person, and by his attorneys, Mitchell and Dolph,
and files affidavit of plaintiff, and motion for an order of publication of summons, as follows, to wit:
Now comes the plaintiff, by his attorneys, and upon the affidavit of plaintiff, herewith filed, moves the
court for an order of publication of summons against defendant, as required by law, he being a
nonresident;
and it appearing to the satisfaction of the court that the defendant cannot, after due diligence,
be [p717] found in this State, and that he is a nonresident thereof, that his place of residence is
unknown to plaintiff, and cannot, with reasonable diligence, be ascertained by him, and that the
plaintiff has a cause of action of action against defendant, and that defendant has property in this
county and State, it is ordered and adjudged by the court that service of the summons in this action
be made by publication for six weeks successively in the "Pacific Christian Advocate," a weekly
newspaper published in Multnomah County, Oregon, and this action is continued for such service.
That the affidavit of plaintiff, referred to in said order, is in the words following:
I, J. H. Mitchell, being first duly sworn, say that the defendant, Marcus Neff, is a nonresident of this
State; that he resides somewhere in the State of California, at what place affiant knows not, and he
cannot be found in this State; that plaintiff has a just cause of action against defendant for a money
demand on account; that this court has jurisdiction of such action; that the defendant has property in
this county and State.
That the complaint in said action was verified and filed on Nov. 3, 1865, and contained facts tending
to prove that, at that date, said Mitchell had a cause of action against said Neff for services as an
attorney, performed "between Jan. 1, 1862, and May 15, 1863." That the entry of judgment in said
action contained the following averments:
And it appearing to the court that the defendant was, at the time of the commencement of this action,
and ever since has been, a nonresident of this State; and it further appearing that he has property in
this State, and that defendant had notice of the pendency of this action by publication of the
summons for six successive weeks in the "Pacific Christian Advocate," a weekly newspaper of

general circulation published in Multnomah County, State of Oregon, the last issue of which was
more than twenty days before the first day of this term.
That the affidavit showing the publication of the summons in the "Advocate" aforesaid was made as
stated therein by the "editor" of that paper. That said complaint, summons, affidavit of Mitchell and of
the "editor" of the "Advocate" aforesaid, and entry of judgment, were in the judgment roll, made up
by the clerk in the case, but the order for publication of the summons aforesaid was not placed in
said roll [p718] by said clerk, but remains on the files of said court; and that, when said court made
said order for publication, and gave said judgment against Neff, the only evidence it had before it to
prove the facts necessary to give it jurisdiction therefor, and particularly to authorize it to find and
state that Neff's residence was unknown to Mitchell, and could not, with reasonable diligence, be
ascertained by him, and that Neff had notice of the pendency of said action by the publication of the
summons as aforesaid, was, so far as appears by the said roll and the records and files of the said
court, the said complaint and affidavits of Mitchell and the editor of the "Advocate."
The statute of Oregon at the time of the commencement of the suit against Neff was as follows: -SECT. 55. When service of the summons cannot be made as prescribed in the last preceding
section, and the defendant, after due diligence, cannot be found within the State, and when that fact
appears, by affidavit, to the satisfaction of the court or judge thereof, or justice in an action in a
justice's court, and it also appears that a cause of action exists against the defendant, or that he is a
proper party to an action relating to real property in this State, such court or judge or justice may
grant an order that the service be made by publication of summons in either of the following
cases: . . .
3. When the defendant is not a resident of the State, but has property therein, and the court has
jurisdiction of the subject of the action.
SECT. 56. The order shall direct the publication to be made in a newspaper published in the county
where the action is commenced, and, if no newspaper be published in the county, then in a
newspaper to be designated as most likely to give notice to the person to be served, and for such
length of time as may be deemed reasonable, not less than once a week for six weeks. In case of
publication, the court or judge shall also direct a copy of the summons and complaint to be forthwith
deposited in the post office, directed to the defendant, at his place of residence, unless it shall
appear that such residence is neither known to the party making the application, nor can, with
reasonable diligence, be ascertained by him. When publication is ordered, personal service of a
copy of the summons and complaint out of the State shall be equivalent to publication and deposit in
the post office. In either case, the defendant shall appear and answer by the first day of the term
following the [p719] expiration of the time prescribed in the order for publication; and, if he does not,
judgment may be taken against him for want thereof. In case of personal service out of the State, the
summons shall specify the time prescribed in the order for publication.
SECT. 57. The defendant against whom publication is ordered, or his personal representatives, on
application and sufficient cause shown, at any time before judgment, shall be allowed to defend the

action; and the defendant against whom publication is ordered, or his representatives, may in like
manner, upon good cause shown, and upon such terms as may be proper, be allowed to defend
after judgment, and within one year after the entry of such judgment, on such terms as may be just;
and, if the defence be successful, and the judgment or any part thereof have been collected or
otherwise enforced, such restitution may thereupon be compelled as the court shall direct. But the
title to property sold upon execution issued on such judgment to a purchaser in good faith shall not
be thereby affected.
SECT. 60. Proof of the service of summons shall be, in case of publication, the affidavit of the printer,
or his foreman, or his principal clerk, showing the same.

Opinion
FIELD, J., Opinion of the Court
MR. JUSTICE FIELD delivered the opinion of the court.
This is an action to recover the possession of a tract of land, of the alleged value of $15,000,
situated in the State of Oregon. The plaintiff asserts title to the premises by a patent of the United
States issued to him in 1866, under the act of Congress of Sept. 27, 1850, usually known as the
Donation Law of Oregon. The defendant claims to have acquired the premises under a sheriff's
deed, made upon a sale of the property on execution issued upon a judgment recovered against the
plaintiff in one of the circuit courts of the State. The case turns upon the validity of this judgment.
It appears from the record that the judgment was rendered in February, 1866, in favor of J. H.
Mitchell, for less than $300, including costs, in an action brought by him upon a demand for services
as an attorney; that, at the time the action was commenced and the judgment rendered, the
defendant therein, the plaintiff here, was a nonresident of the State; [p720] that he was not
personally served with process, and did not appear therein; and that the judgment was entered upon
his default in not answering the complaint, upon a constructive service of summons by publication.
The Code of Oregon provides for such service when an action is brought against a nonresident and
absent defendant who has property within the State. It also provides, where the action is for the
recovery of money or damages, for the attachment of the property of the nonresident. And it also
declares that no natural person is subject to the jurisdiction of a court of the State
unless he appear in the court, or be found within the State, or be a resident thereof, or have property
therein; and, in the last case, only to the extent of such property at the time the jurisdiction attached.
Construing this latter provision to mean that, in an action for money or damages where a defendant
does not appear in the court, and is not found within the State, and is not a resident thereof, but has
property therein, the jurisdiction of the court extends only over such property, the declaration
expresses a principle of general, if not universal, law. The authority of every tribunal is necessarily

restricted by the territorial limits of the State in which it is established. Any attempt to exercise
authority beyond those limits would be deemed in every other forum, as has been said by this Court,
an illegitimate assumption of power, and be resisted as mere abuse. D'Arcy v. Ketchum et al., 11
How. 165. In the case against the plaintiff, the property here in controversy sold under the judgment
rendered was not attached, nor in any way brought under the jurisdiction of the court. Its first
connection with the case was caused by a levy of the execution. It was not, therefore, disposed of
pursuant to any adjudication, but only in enforcement of a personal judgment, having no relation to
the property, rendered against a nonresident without service of process upon him in the action or his
appearance therein. The court below did not consider that an attachment of the property was
essential to its jurisdiction or to the validity of the sale, but held that the judgment was invalid from
defects in the affidavit upon which the order of publication was obtained and in the affidavit by which
the publication was proved. [p721]
There is some difference of opinion among the members of this Court as to the rulings upon these
alleged defects. The majority are of opinion that, inasmuch as the statute requires, for an order of
publication, that certain facts shall appear by affidavit to the satisfaction of the court or judge, defects
in such affidavit can only be taken advantage of on appeal, or by some other direct proceeding, and
cannot be urged to impeach the judgment collaterally. The majority of the court are also of opinion
that the provision of the statute requiring proof of the publication in a newspaper to be made by the
"affidavit of the printer, or his foreman, or his principal clerk" is satisfied when the affidavit is made by
the editor of the paper. The term "printer," in their judgment, is there used not to indicate the person
who sets up the type -- he does not usually have a foreman or clerks -- it is rather used as
synonymous with publisher. The Supreme Court of New York so held in one case; observing that, for
the purpose of making the required proof, publishers were "within the spirit of the statute." Bunce v.
Reed, 16 Barb. (N. Y.) 350. And, following this ruling, the Supreme Court of California held that an
affidavit made by a "publisher and proprietor" was sufficient. Sharp v. Daugney, 33 Cal. 512. The
term "editor," as used when the statute of New York was passed, from which the Oregon law is
borrowed, usually included not only the person who wrote or selected the articles for publication, but
the person who published the paper and put it into circulation. Webster, in an early edition of his
Dictionary, gives as one of the definitions of an editor, a person "who superintends the publication of
a newspaper." It is principally since that time that the business of an editor has been separated from
that of a publisher and printer, and has become an independent profession.
If, therefore, we were confined to the rulings of the court below upon the defects in the affidavits
mentioned, we should be unable to uphold its decision. But it was also contended in that court, and
is insisted upon here, that the judgment in the State court against the plaintiff was void for want of
personal service of process on him, or of his appearance in the action in which it was rendered and
that the premises in controversy could not be subjected to the payment of the demand [p722] of a
resident creditor except by a proceeding in rem, that is, by a direct proceeding against the property
for that purpose. If these positions are sound, the ruling of the Circuit Court as to the invalidity of that
judgment must be sustained notwithstanding our dissent from the reasons upon which it was made.
And that they are sound would seem to follow from two well established principles of public law

respecting the jurisdiction of an independent State over persons and property. The several States of
the Union are not, it is true, in every respect independent, many of the right and powers which
originally belonged to them being now vested in the government created by the Constitution. But,
except as restrained and limited by that instrument, they possess and exercise the authority of
independent States, and the principles of public law to which we have referred are applicable to
them. One of these principles is that every State possesses exclusive jurisdiction and sovereignty
over persons and property within its territory. As a consequence, every State has the power to
determine for itself the civil status and capacities of its inhabitants; to prescribe the subjects upon
which they may contract, the forms and solemnities with which their contracts shall be executed, the
rights and obligations arising from them, and the mode in which their validity shall be determined and
their obligations enforced; and also the regulate the manner and conditions upon which property
situated within such territory, both personal and real, may be acquired, enjoyed, and transferred. The
other principle of public law referred to follows from the one mentioned; that is, that no State can
exercise direct jurisdiction and authority over persons or property without its territory. Story, Confl.
Laws, c. 2; Wheat. Int. Law, pt. 2, c. 2. The several States are of equal dignity and authority, and the
independence of one implies the exclusion of power from all others. And so it is laid down by jurists
as an elementary principle that the laws of one State have no operation outside of its territory except
so far as is allowed by comity, and that no tribunal established by it can extend its process beyond
that territory so as to subject either persons or property to its decisions. "Any exertion of authority of
this sort beyond this limit," says Story, "is a mere nullity, and incapable of binding [p723] such
persons or property in any other tribunals." Story, Confl.Laws, sect. 539.
But as contracts made in one State may be enforceable only in another State, and property may be
held by nonresidents, the exercise of the jurisdiction which every State is admitted to possess over
persons and property within its own territory will often affect persons and property without it. To any
influence exerted in this way by a State affecting persons resident or property situated elsewhere, no
objection can be justly taken; whilst any direct exertion of authority upon them, in an attempt to give
ex-territorial operation to its laws, or to enforce an ex-territorial jurisdiction by its tribunals, would be
deemed an encroachment upon the independence of the State in which the persons are domiciled or
the property is situated, and be resisted as usurpation.
Thus the State, through its tribunals, may compel persons domiciled within its limits to execute, in
pursuance of their contracts respecting property elsewhere situated, instruments in such form and
with such solemnities as to transfer the title, so far as such formalities can be complied with; and the
exercise of this jurisdiction in no manner interferes with the supreme control over the property by the
State within which it is situated. Penn v. Lord Baltimore, 1 Ves. 444;Massie v. Watts, 6 Cranch
148; Watkins v. Holman, 16 Pet. 25; Corbett v. Nutt, 10 Wall. 464.
So the State, through its tribunals, may subject property situated within its limits owned by
nonresidents to the payment of the demand of its own citizens against them, and the exercise of this
jurisdiction in no respect infringes upon the sovereignty of the State where the owners are domiciled.
Every State owes protection to its own citizens, and, when nonresidents deal with them, it is a

legitimate and just exercise of authority to hold and appropriate any property owned by such
nonresidents to satisfy the claims of its citizens. It is in virtue of the State's jurisdiction over the
property of the nonresident situated within its limits that its tribunals can inquire into that
nonresident's obligations to its own citizens, and the inquiry can then be carried only to the extent
necessary to control the disposition of the property. If the nonresident [p724] have no property in the
State, there is nothing upon which the tribunals can adjudicate.
These views are not new. They have been frequently expressed, with more or less distinctness, in
opinions of eminent judges, and have been carried into adjudications in numerous cases. Thus,
in Picquet v. Swan, 5 Mas. 35, Mr. Justice Story said:-Where a party is within a territory, he may justly be subjected to its process, and bound personally by
the judgment pronounced on such process against him. Where he is not within such territory, and is
not personally subject to its laws, if, on account of his supposed or actual property being within the
territory, process by the local laws may, by attachment, go to compel his appearance, and, for his
default to appear, judgment may be pronounced against him, such a judgment must, upon general
principles, be deemed only to bind him to the extent of such property, and cannot have the effect of a
conclusive judgment in personam, for the plain reason, that, except so far as the property is
concerned, it is a judgment coram non judice.
And in Boswell's Lessee v. Otis, 9 How. 336, where the title of the plaintiff in ejectment was acquired
on a sheriff's sale under a money decree rendered upon publication of notice against nonresidents,
in a suit brought to enforce a contract relating to land, Mr. Justice McLean said:-Jurisdiction is acquired in one of two modes: first, as against the person of the defendant by the
service of process; or, secondly, by a procedure against the property of the defendant within the
jurisdiction of the court. In the latter case, the defendant is not personally bound by the judgment
beyond the property in question. And it is immaterial whether the proceeding against the property be
by an attachment or bill in chancery. It must be substantially a proceeding in rem.
These citations are not made as authoritative expositions of the law, for the language was perhaps
not essential to the decision of the cases in which it was used, but as expressions of the opinion of
eminent jurists. But in Cooper v. Reynolds, reported in the 10th of Wallace, it was essential to the
disposition of the case to declare the effect of a personal action against an absent party, without the
jurisdiction of the court, not served [p725] with process or voluntarily submitting to the tribunal, when
it was sought to subject his property to the payment of a demand of a resident complainant; and, in
the opinion there delivered, we have a clear statement of the law as to the efficacy of such actions,
and the jurisdiction of the court over them. In that case, the action was for damages for alleged false
imprisonment of the plaintiff; and, upon his affidavit that the defendants had fled from the State, or
had absconded or concealed themselves so that the ordinary process of law could not reach them, a
writ of attachment was sued out against their property. Publication was ordered by the court, giving
notice to them to appear and plead, answer or demur, or that the action would be taken as
confessed and proceeded in ex parte as to them. Publication was had, but they made default, and

judgment was entered against them, and the attached property was sold under it. The purchaser
having been put into possession of the property, the original owner brought ejectment for its
recovery. In considering the character of the proceeding, the Court, speaking through Mr. Justice
Miller, said:-Its essential purpose or nature is to establish, by the judgment of the court, a demand or claim
against the defendant, and subject his property lying within the territorial jurisdiction of the court to
the payment of that demand. But the plaintiff is met at the commencement of his proceedings by the
fact that the defendant is not within the territorial jurisdiction, and cannot be served with any process
by which he can be brought personally within the power of the court. For this difficulty, the statute
has provided a remedy. It says that, upon affidavit's being made of that fact, a writ of attachment
may be issued and levied on any of the defendant's property, and a publication may be made
warning him to appear; and that thereafter the court may proceed in the case, whether he appears or
not. If the defendant appears, the cause becomes mainly a suit in personam, with the added incident
that the property attached remains liable, under the control of the court, to answer to any demand
which may be established against the defendant by the final judgment of the court. But if there is no
appearance of the defendant, and no service of process on him, the case becomes in its essential
nature a proceeding in rem, the only effect of which is to subject the property attached to the
payment of the demand which the court may find to be due to the plaintiff. That such is [p726] the
nature of this proceeding in this latter class of cases is clearly evinced by two well established
propositions: first, the judgment of the court, though in form a personal judgment against the
defendant, has no effect beyond the property attached in that suit. No general execution can be
issued for any balance unpaid after the attached property is exhausted. No suit can be maintained
on such a judgment in the same court, or in any other; nor can it be used as evidence in any other
proceeding not affecting the attached property; nor could the costs in that proceeding be collected of
defendant out of any other property than that attached in the suit. Second, the court in such a suit
cannot proceed unless the officer finds some property of defendant on which to levy the writ of
attachment. A return that none can be found is the end of the case, and deprives the court of further
jurisdiction, though the publication may have been duly made and proven in court.
The fact that the defendants in that case had fled from the State, or had concealed themselves, so
as not to be reached by the ordinary process of the court, and were not nonresidents, was not made
a point in the decision. The opinion treated them as being without the territorial jurisdiction of the
court, and the grounds and extent of its authority over persons and property thus situated were
considered when they were not brought within its jurisdiction by personal service or voluntary
appearance.
The writer of the present opinion considered that some of the objections to the preliminary
proceedings in the attachment suit were well taken, and therefore dissented from the judgment of
the Court, but, to the doctrine declared in the above citation, he agreed, and he may add that it
received the approval of all the judges. It is the only doctrine consistent with proper protection to
citizens of other States. If, without personal service, judgments in personam,obtained ex

parte against nonresidents and absent parties, upon mere publication of process, which, in the great
majority of cases, would never be seen by the parties interested, could be upheld and enforced, they
would be the constant instruments of fraud and oppression. Judgments for all sorts of claims upon
contracts and for torts, real or pretended, would be thus obtained, under which property would be
seized, when the evidence of the transactions upon[p727] which they were founded, if they ever had
any existence, had perished.
Substituted service by publication, or in any other authorized form, may be sufficient to inform parties
of the object of proceedings taken where property is once brought under the control of the court by
seizure or some equivalent act. The law assumes that property is always in the possession of its
owner, in person or by agent, and it proceeds upon the theory that its seizure will inform him not only
that it is taken into the custody of the court, but that he must look to any proceedings authorized by
law upon such seizure for its condemnation and sale. Such service may also be sufficient in cases
where the object of the action is to reach and dispose of property in the State, or of some interest
therein, by enforcing a contract or a lien respecting the same, or to partition it among different
owners, or, when the public is a party, to condemn and appropriate it for a public purpose. In other
words, such service may answer in all actions which are substantially proceedings in rem. But where
the entire object of the action is to determine the personal rights and obligations of the defendants,
that is, where the suit is merely in personam, constructive service in this form upon a nonresident is
ineffectual for any purpose. Process from the tribunals of one State cannot run into another State,
and summon parties there domiciled to leave its territory and respond to proceedings against them.
Publication of process or notice within the State where the tribunal sits cannot create any greater
obligation upon the nonresident to appear. Process sent to him out of the State, and process
published within it, are equally unavailing in proceedings to establish his personal liability.
The want of authority of the tribunals of a State to adjudicate upon the obligations of nonresidents,
where they have no property within its limits, is not denied by the court below: but the position is
assumed, that, where they have property within the State, it is immaterial whether the property is in
the first instance brought under the control of the court by attachment or some other equivalent act,
and afterwards applied by its judgment to the satisfaction of demands against its owner; or such
demands be first established in a personal action, and [p728] the property of the nonresident be
afterwards seized and sold on execution. But the answer to this position has already been given in
the statement that the jurisdiction of the court to inquire into and determine his obligations at all is
only incidental to its jurisdiction over the property. Its jurisdiction in that respect cannot be made to
depend upon facts to be ascertained after it has tried the cause and rendered the judgment. If the
judgment be previously void, it will not become valid by the subsequent discovery of property of the
defendant, or by his subsequent acquisition of it. The judgment, if void when rendered, will always
remain void; it cannot occupy the doubtful position of being valid if property be found, and void if
there be none. Even if the position assumed were confined to cases where the nonresident
defendant possessed property in the State at the commencement of the action, it would still make
the validity of the proceedings and judgment depend upon the question whether, before the levy of
the execution, the defendant had or had not disposed of the property. If, before the levy, the property

should be sold, then, according to this position, the judgment would not be binding. This doctrine
would introduce a new element of uncertainty in judicial proceedings. The contrary is the law: the
validity of every judgment depends upon the jurisdiction of the court before it is rendered, not upon
what may occur subsequently. In Webster v. Reid, reported in 11th of Howard, the plaintiff claimed
title to land sold under judgments recovered in suits brought in a territorial court of Iowa, upon
publication of notice under a law of the territory, without service of process; and the court said:
These suits were not a proceeding in rem against the land, but were in personam against the owners
of it. Whether they all resided within the territory or not does not appear, nor is it a matter of any
importance. No person is required to answer in a suit on whom process has not been served, or
whose property has not been attached. In this case, there was no personal notice, nor an
attachment or other proceeding against the land, until after the judgments. The judgments, therefore,
are nullities, and did not authorize the executions on which the land was sold. [p729]
The force and effect of judgments rendered against nonresidents without personal service of
process upon them, or their voluntary appearance, have been the subject of frequent consideration
in the courts of the United States and of the several States, as attempts have been made to enforce
such judgments in States other than those in which they were rendered, under the provision of the
Constitution requiring that "full faith and credit shall be given in each State to the public acts,
records, and judicial proceedings of every other State;" and the act of Congress providing for the
mode of authenticating such acts, records, and proceedings, and declaring that, when thus
authenticated,
they shall have such faith and credit given to them in every court within the United States as they
have by law or usage in the courts of the State from which they are or shall or taken.
In the earlier cases, it was supposed that the act gave to all judgments the same effect in other
States which they had by law in the State where rendered. But this view was afterwards qualified so
as to make the act applicable only when the court rendering the judgment had jurisdiction of the
parties and of the subject matter, and not to preclude an inquiry into the jurisdiction of the court in
which the judgment was rendered, or the right of the State itself to exercise authority over the person
or the subject matter. M'Elmoyle v. Cohen, 13 Pet. 312. In the case of D'Arcy v. Ketchum,reported in
the 11th of Howard, this view is stated with great clearness. That was an action in the Circuit Court of
the United States for Louisiana, brought upon a judgment rendered in New York under a State
statute, against two joint debtors, only one of whom had been served with process, the other being a
nonresident of the State. The Circuit Court held the judgment conclusive and binding upon the
nonresident not served with process, but this Court reversed its decision, observing, that it was a
familiar rule that countries foreign to our own disregarded a judgment merely against the person,
where the defendant had not been served with process nor had a day in court; that national comity
was never thus extended; that the proceeding was deemed an illegitimate assumption of power, and
resisted as mere abuse; that no faith and credit or force and effect had been given to such
judgments by any State of the Union, so far[p730] as known; and that the State courts had
uniformly, and in many instances, held them to be void. "The international law," said the court,

as it existed among the States in 1790, was that a judgment rendered in one State, assuming to bind
the person of a citizen of another, was void within the foreign State, when the defendant had not
been served with process or voluntarily made defence, because neither the legislative jurisdiction
nor that of courts of justice had binding force.
And the Court held that the act of Congress did not intend to declare a new rule, or to embrace
judicial records of this description. As was stated in a subsequent case, the doctrine of this Court is
that the act
was not designed to displace that principle of natural justice which requires a person to have notice
of a suit before he can be conclusively bound by its result, nor those rules of public law which protect
persons and property within one State from the exercise of jurisdiction over them by another.
The Lafayette Insurance Co. v. French et al., 18 How. 404.
This whole subject has been very fully and learnedly considered in the recent case of Thompson v.
Whitman, 18 Wall. 457, where all the authorities are carefully reviewed and distinguished, and the
conclusion above stated is not only reaffirmed, but the doctrine is asserted that the record of a
judgment rendered in another State may be contradicted as to the facts necessary to give the court
jurisdiction against its recital of their existence. In all the cases brought in the State and Federal
courts, where attempts have been made under the act of Congress to give effect in one State to
personal judgments rendered in another State against nonresidents, without service upon them, or
upon substituted service by publication, or in some other form, it has been held, without an
exception, so far as we are aware, that such judgments were without any binding force except as to
property, or interests in property, within the State, to reach and affect which was the object of the
action in which the judgment was rendered, and which property was brought under control of the
court in connection with the process against the person. The proceeding in such cases, though in
the form of a personal action, has been uniformly treated, where service was not obtained, and the
party did not voluntarily[p731] appear, as effectual and binding merely as a proceeding in rem, and
as having no operation beyond the disposition of the property, or some interest therein. And the
reason assigned for this conclusion has been that which we have already stated -- that the tribunals
of one State have no jurisdiction over persons beyond its limits, and can inquire only into their
obligations to its citizens when exercising its conceded jurisdiction over their property within its limits.
In Bissell v. Briggs, decided by the Supreme Court of Massachusetts as early as 1813, the law is
stated substantially in conformity with these views. In that case, the court considered at length the
effect of the constitutional provision, and the act of Congress mentioned, and after stating that, in
order to entitle the judgment rendered in any court of the United States to the full faith and credit
mentioned in the Constitution, the court must have had jurisdiction not only of the cause, but of the
parties, it proceeded to illustrate its position by observing, that, where a debtor living in one State
has goods, effects, and credits in another, his creditor living in the other State may have the property
attached pursuant to its laws, and, on recovering judgment, have the property applied to its
satisfaction, and that the party in whose hands the property was would be protected by the judgment
in the State of the debtor against a suit for it, because the court rendering the judgment had

jurisdiction to that extent; but that, if the property attached were insufficient to satisfy the judgment,
and the creditor should sue on that judgment in the State of the debtor, he would fail because the
defendant was not amenable to the court rendering the judgment. In other words, it was held that
over the property within the State the court had jurisdiction by the attachment, but had none over his
person, and that any determination of his liability, except so far as was necessary for the disposition
of the property, was invalid.
In Kilbourn v. Woodworth, 5 Johns. (N.Y.) 37, an action of debt was brought in New York upon a
personal judgment recovered in Massachusetts. The defendant in that judgment was not served with
process, and the suit was commenced by the attachment of a bedstead belonging to the defendant,
accompanied with a summons to appear, served on his wife after she had left her place in
Massachusetts. The court held that [p732] the attachment bound only the property attached as a
proceeding in rem, and that it could not bind the defendant, observing, that to bind a defendant
personally when he was never personally summoned or had notice of the proceeding would be
contrary to the first principles of justice, repeating the language in that respect of Chief Justice
DeGrey, used in the case of Fisher v. Lane,3 Wils. 297, in 1772. See also Borden v. Fitch, 15 Johns.
(N. Y.) 121, and the cases there cited, and Harris v. Hardeman et al., 14 How. 334. To the same
purport, decisions are found in all the State courts. In several of the cases, the decision has been
accompanied with the observation that a personal judgment thus recovered has no binding force
without the State in which it is rendered, implying that, in such State, it may be valid and binding. But
if the court has no jurisdiction over the person of the defendant by reason of his nonresidence, and
consequently no authority to pass upon his personal rights and obligations; if the whole proceeding,
without service upon him or his appearance, is coram non judice and void; if to hold a defendant
bound by such a judgment is contrary to the first principles of justice -- it is difficult to see how the
judgment can legitimately have any force within the State. The language used can be justified only
on the ground that there was no mode of directly reviewing such judgment or impeaching its validity
within the State where rendered, and that therefore it could be called in question only when its
enforcement was elsewhere attempted. In later cases, this language is repeated with less frequency
than formerly, it beginning to be considered, as it always ought to have been, that a judgment which
can be treated in any State of this Union as contrary to the first principles of justice, and as an
absolute nullity, because rendered without any jurisdiction of the tribunal over the party, is not
entitled to any respect in the State where rendered. Smith v. McCutchen, 38 Mo. 415; Darrance v.
Preston, 18 Iowa, 396; Hakes v. Shupe, 27 id. 465; Mitchell's Administrator v. Gray, 18 Ind. 123.
Be that as it may, the courts of the United States are not required to give effect to judgments of this
character when any right is claimed under them. Whilst they are not foreign tribunals in their
relations to the State courts, they are tribunals [p733] of a different sovereignty, exercising a distinct
and independent jurisdiction, and are bound to give to the judgments of the State courts only the
same faith and credit which the courts of another State are bound to give to them.
Since the adoption of the Fourteenth Amendment to the Federal Constitution, the validity of such
judgments may be directly questioned, and their enforcement in the State resisted, on the ground

that proceedings in a court of justice to determine the personal rights and obligations of parties over
whom that court has no jurisdiction do not constitute due process of law. Whatever difficulty may be
experienced in giving to those terms a definition which will embrace every permissible exertion of
power affecting private rights, and exclude such as is forbidden, there can be no doubt of their
meaning when applied to judicial proceedings. They then mean a course of legal proceedings
according to those rules and principles which have been established in our systems of jurisprudence
for the protection and enforcement of private rights. To give such proceedings any validity, there
must be a tribunal competent by its constitution -- that is, by the law of its creation -- to pass upon
the subject matter of the suit; and if that involves merely a determination of the personal liability of
the defendant, he must be brought within its jurisdiction by service of process within the State, or his
voluntary appearance.
Except in cases affecting the personal status of the plaintiff and cases in which that mode of service
may be considered to have been assented to in advance, as hereinafter mentioned, the substituted
service of process by publication, allowed by the law of Oregon and by similar laws in other States,
where actions are brought against nonresidents, is effectual only where, in connection with process
against the person for commencing the action, property in the State is brought under the control of
the court, and subjected to its disposition by process adapted to that purpose, or where the judgment
is sought as a means of reaching such property or affecting some interest therein; in other words,
where the action is in the nature of a proceeding in rem. As stated by Cooley in his Treatise on
Constitutional Limitations 405, for any other purpose than to subject the property of a nonresident to
valid claims against [p734] him in the State, "due process of law would require appearance or
personal service before the defendant could be personally bound by any judgment rendered."
It is true that, in a strict sense, a proceeding in rem is one taken directly against property, and has for
its object the disposition of the property, without reference to the title of individual claimants; but, in a
larger and more general sense, the terms are applied to actions between parties where the direct
object is to reach and dispose of property owned by them, or of some interest therein. Such are
cases commenced by attachment against the property of debtors, or instituted to partition real
estate, foreclose a mortgage, or enforce a lien. So far as they affect property in the State, they are
substantially proceedings in rem in the broader sense which we have mentioned.
It is hardly necessary to observe that, in all we have said, we have had reference to proceedings in
courts of first instance, and to their jurisdiction, and not to proceedings in an appellate tribunal to
review the action of such courts. The latter may be taken upon such notice, personal or constructive,
as the State creating the tribunal may provide. They are considered as rather a continuation of the
original litigation than the commencement of a new action. Nations et al. v. Johnson et al., 24 How.
195.
It follows from the views expressed that the personal judgment recovered in the State court of
Oregon against the plaintiff herein, then a nonresident of the State, was without any validity, and did
not authorize a sale of the property in controversy.

To prevent any misapplication of the views expressed in this opinion, it is proper to observe that we
do not mean to assert by anything we have said that a State may not authorize proceedings to
determine the status of one of its citizens towards a nonresident which would be binding within the
State, though made without service of process or personal notice to the nonresident. The jurisdiction
which every State possesses to determine the civil status and capacities of all its inhabitants
involves authority to prescribe the conditions on which proceedings affecting them may be
commenced and carried on within its territory. The State, for example, has absolute [p735] right to
prescribe the conditions upon which the marriage relation between its own citizens shall be created,
and the causes for which it may be dissolved. One of the parties guilty of acts for which, by the law
of the State, a dissolution may be granted may have removed to a State where no dissolution is
permitted. The complaining party would, therefore, fail if a divorce were sought in the State of the
defendant; and if application could not be made to the tribunals of the complainant's domicile in such
case, and proceedings be there instituted without personal service of process or personal notice to
the offending party, the injured citizen would be without redress. Bish. Marr. and Div., sect. 156.
Neither do we mean to assert that a State may not require a nonresident entering into a partnership
or association within its limits, or making contracts enforceable there, to appoint an agent or
representative in the State to receive service of process and notice in legal proceedings instituted
with respect to such partnership, association, or contracts, or to designate a place where such
service may be made and notice given, and provide, upon their failure, to make such appointment or
to designate such place that service may be made upon a public officer designated for that purpose,
or in some other prescribed way, and that judgments rendered upon such service may not be
binding upon the nonresidents both within and without the State. As was said by the Court of
Exchequer in Vallee v. Dumergue, 4 Exch. 290,
It is not contrary to natural justice that a man who has agreed to receive a particular mode of
notification of legal proceedings should be bound by a judgment in which that particular mode of
notification has been followed, even though he may not have actual notice of them.
See also The Lafayette Insurance Co. v. French et al., 18 How. 404, and Gillespie v. Commercial
Mutual Marine Insurance Co., 12 Gray (Mass.), 201. Nor do we doubt that a State, on creating
corporations or other institutions for pecuniary or charitable purposes, may provide a mode in which
their conduct may be investigated, their obligations enforced, or their charters revoked, which shall
require other than personal service upon their officers or members. Parties becoming members of
such corporations or institutions would hold their [p736] interest subject to the conditions prescribed
by law. Copin v. Adamson, Law Rep. 9 Ex. 345.
In the present case, there is no feature of this kind, and consequently no consideration of what
would be the effect of such legislation in enforcing the contract of a nonresident can arise. The
question here respects only the validity of a money judgment rendered in one State in an action
upon a simple contract against the resident of another without service of process upon him or his
appearance therein. Judgment affirmed.

MULLANE v. CENTRAL HANOVER BANK & TRUST CO.

et al.
339 U.S. 306 (70 S.Ct. 652, 94 L.Ed. 865)
MULLANE v. CENTRAL HANOVER BANK & TRUST CO. et al.
No. 378.
Argued: and Submitted Feb. 8, 1950.
Decided: April 24, 1950.

opinion, JACKSON [HTML]

dissent, BURTON [HTML]

Mr. Kenneth J. Mullane, New York City, for appellants.

Mr. Albert B. Maginnes, New York City, for appellee, Central Hanover Bank and Trust Co.
Mr. James N. Vaughan, New York City, for appellee, James N. Vaughan, Guardian et al.
TOP

Mr. Justice JACKSON delivered the opinion of the Court.

This controversy questions the constitutional sufficiency of notice to beneficiaries on judicial
settlement of accounts by the trustee of a common trust fund established under the New York
Banking Law, Consol.Laws, c. 2. The New York Court of Appeals considered and overruled
objections that the statutory notice contravenes requirements of the Fourteenth Amendment and that
by allowance of the account beneficiaries were deprived of property without due process of law. 299
N.Y. 697, 87 N.E.2d 73. The case is here on appeal under 28 U.S.C. 1257, 28 U.S.C.A. 1257.
Common trust fund legislation is addressed to a problem appropriate for state action. Mounting
overheads have made administration of small trusts undesirable to corporate trustees. In order that
donors and testators of moderately sized trusts may not be denied the service of corporate
fiduciaries, the District of Columbia and some thirty states other than New York have permitted
pooling small trust estates into one fund for investment administration. * The income, capital gains,
losses and expenses of the collective trust are shared by the constituent trusts in proportion to their
contribution. By this plan, diversification of risk and economy of management can be extended to
those whose capital standing alone would not obtain such advantage.

Statutory authorization for the establishment of such common trust funds is provided in the New York
Banking Law, 100-c, c. 687, L.1937, as amended by c. 602, L.1943 and c. 158, L.1944. Under this
Act a trust company may, with approval of the State Banking Board, establish a common fund and,
within prescribed limits, invest therein the assets of an unlimited number of estates, trusts or other
funds of which it is trustee. Each participating trust shares ratably in the common fund, but exclusive
management and control is in the trust company as trustee, and neither a fiduciary nor any
beneficiary of a participating trust is deemed to have ownership in any particular asset or investment
of this common fund. The trust company must keep fund assets separate from its own, and in its
fiduciary capacity may not deal with itself or any affiliate. Provisions are made for accountings twelve
to fifteen months after the establishment of a fund and triennially thereafter. The decree in each such
judicial settlement of accounts is made binding and conclusive as to any matter set forth in the
account upon everyone having any interest in the common fund or in any participating estate, trust
or fund.
In January, 1946, Central Hanover Bank and Trust Company established a common trust fund in
accordance with these provisions, and in March, 1947, it petitioned the Surrogate's Court for
settlement of its first account as common trustee. During the accounting period a total of 113 trusts,
approximately half inter vivos and half testamentary, participated in the common trust fund, the gross
capital of which was nearly three million dollars. The record does not show the number or residence
of the beneficiaries, but they were many and it is clear that some of them were not residents of the
State of New York.
The only notice given beneficiaries of this specific application was by publication in a local
newspaper in strict compliance with the minimum requirements of N.Y. Banking Law 100-c(12):
'After filing such petition (for judicial settlement of its account) the petitioner shall cause to be issued
by the court in which the petition is filed and shall publish not less than once in each week for four
successive weeks in a newspaper to be designated by the court a notice or citation addressed
generally without naming them to all parties interested in such common trust fund and in such
estates, trusts or funds mentioned in the petition, all of which may be described in the notice or
citation only in the manner set forth in said petition and without setting forth the residence of any
such decedent or donor of any such estate, trust or fund.' Thus the only notice required, and the only
one given, was by newspaper publication setting forth merely the name and address of the trust
company, the name and the date of establishment of the common trust fund, and a list of all
participating estates, trusts or funds.
At the time the first investment in the common fund was made on behalf of each participating estate,
however, the trust company, pursuant to the requirements of 100-c(9), had notified by mail each
person of full age and sound mind whose name and address was then known to it and who was
'entitled to share in the income therefrom * * * (or) * * * who would be entitled to share in the principal
if the event upon which such estate, trust or fund will become distributable should have occurred at
the time of sending such notice.' Included in the notice was a copy of those provisions of the Act

relating to the sending of the notice itself and to the judicial settlement of common trust fund
accounts.
Upon the filing of the petition for the settlement of accounts, appellant was, by order of the court
pursuant to 100-c(12), appointed special guardian and attorney for all persons known or unknown
not otherwise appearing who had or might thereafter have any interest in the income of the common
trust fund; and appellee Vaughan was appointed to represent those similarly interested in the
principal. There were no other appearances on behalf of any one interested in either interest or
principal.
Appellant appeared specially, objecting that notice and the statutory provisions for notice to
beneficiaries were inadequate to afford due process under the Fourteenth Amendment, and
therefore that the court was without jurisdiction to render a final and binding decree. Appellant's
objections were entertained and overruled, the Surrogate holding that the notice required and given
was sufficient. 75 N.Y.S.2d 397. A final decree accepting the accounts has been entered, affirmed by
the Appellate Division of the Supreme Court, In re Central Hanover Bank & Trust Co., 275 App.Div.
769, 88 N.Y.S.2d 907, and by the Court of Appeals of the State of New York, 299 N.Y. 697, 87
N.E.2d 73.
The effect of this decree, as held below, is to settle 'all questions respecting the management of the
common fund.' We understand that every right which beneficiaries would otherwise have against the
trust company, either as trustee of the common fund or as trustee of any individual trust, for improper
management of the common trust fund during the period covered by the accounting is sealed and
wholly terminated by the decree. See Matter of Hoaglund's Estate, 194 Misc. 803, 811812, 74
N.Y.S.2d 156, 164, affirmed 272 App.Div. 1040, 74 N.Y.S.2d 911, affirmed 297 N.Y. 920, 79 N.E.2d
746; Matter of Bank of New York, 189 Misc. 459, 470, 67 N.Y.S.2d 444, 453; Matter of Security Trust
Co. of Rochester, 189 Misc. 748, 760, 70 N.Y.S.2d 260, 271; Matter of Continental Bank & Trust Co.,
189 Misc. 795, 797, 67 N.Y.S.2d 806, 807808.
We are met at the outset with a challenge to the power of the Statethe right of its courts to
adjudicate at all as against those beneficiaries who reside without the State of New York. It is
contended that the proceeding is one in personam in that the decree affects neither title to nor
possession of any res, but adjudges only personal rights of the beneficiaries to surcharge their
trustee for negligence or breach of trust. Accordingly, it is said, under the strict doctrine of Pennoyer
v. Neff, 95 U.S. 714, 24 L.Ed. 565, the Surrogate is without jurisdiction as to nonresidents upon
whom personal service of process was not made.
Distinctions between actions in rem and those in personam are ancient and originally expressed in
procedural terms what seems really to have been a distinction in the substantive law of property
under a system quite unlike our own. Buckland and McNair, Roman Law and Common Law, 66;
Burdick, Principles of Roman Law and Their Relation to Modern Law, 298. The legal recognition and
rise in economic importance of incorporeal or intangible forms of property have upset the ancient
simplicity of property law and the clarity of its distinctions, while new forms of proceedings have

confused the old procedural classification. American courts have sometimes classed certain actions
as in rem because personal service of process was not required, and at other times have held
personal service of process not required because the action was in rem. See cases collected in
Freeman on Judgments, 1517 et seq. (5th ed.).
Judicial proceedings to settle fiduciary accounts have been sometimes termed in rem, or more
indefinitely quasi in rem, or more vaguely still, 'in the nature of a proceeding in rem.' It is not readily
apparent how the courts of New York did or would classify the present proceeding, which has some
characteristics and is wanting in some features of proceedings both in rem and in personam. But in
any event we think that the requirements of the Fourteenth Amendment to the Federal Constitution
do not depend upon a classification for which the standards are so elusive and confused generally
and which, being primarily for state courts to define, may and do vary from state to state. Without
disparaging the usefulness of distinctions between actions in rem and those in personam in many
branches of law, or on other issues, or the reasoning which underlies them, we do not rest the power
of the State to resort to constructive service in this proceeding upon how its courts or this Court may
regard this historic antithesis. It is sufficient to observe that, whatever the technical definition of its
chosen procedure, the interest of each state in providing means to close trusts that exist by the
grace of its laws and are administered under the supervision of its courts is so insistent and rooted in
custom as to establish beyond doubt the right of its courts to determine the interests of all claimants,
resident or nonresident, provided its procedure accords full opportunity to appear and be heard.
Quite different from the question of a state's power to discharge trustees is that of the opportunity it
must give beneficiaries to contest. Many controversies have raged about the cryptic and abstract
words of the Due Process Clause but there can be no doubt that at a minimum they require that
deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for
hearing appropriate to the nature of the case.
In two ways this proceeding does or may deprive beneficiaries of property. It may cut off their rights
to have the trustee answer for negligent or illegal impairments of their interests. Also, their interests
are presumably subject to diminution in the proceeding by allowance of fees and expenses to one
who, in their names but without their knowledge, may conduct a fruitless or uncompensatory contest.
Certainly the proceeding is one in which they may be deprived of property rights and hence notice
and hearing must measure up to the standards of due process.
Personal service of written notice within the jurisdiction is the classic form of notice always adequate
in any type of proceeding. But the vital interest of the State in bringing any issues as to its fiduciaries
to a final settlement can be served only if interests or claims of individuals who are outside of the
State can somehow be determined. A construction of the Due Process Clause which would place
impossible or impractical obstacles in the way could not be justified.
Against this interest of the State we must balance the individual interest sought to be protected by
the Fourteenth Amendment. This is defined by our holding that 'The fundamental requisite of due
process of law is the opportunity to be heard.' Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779,

783, 58 L.Ed. 1363. This right to be heard has little reality or worth unless one is informed that the
matter is pending and can choose for himself whether to appear or default, acquiesce or contest.
The Court has not committed itself to any formula achieving a balance between these interests in a
particular proceeding or determining when constructive notice may be utilized or what test it must
meet. Personal service has not in all circumstances been regarded as indispensable to the process
due to residents, and it has more often been held unnecessary as to nonresidents. We disturb none
of the established rules on these subjects. No decision constitutes a controlling or even a very
illuminating precedent for the case before us. But a few general principles stand out in the books.
An elementary and fundamental requirement of due process in any proceeding which is to be
accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested
parties of the pendency of the action and afford them an opportunity to present their objections.
Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278, 132 A.L.R. 1357; Grannis v.
Ordean, 234 U.S. 385, 34 S.Ct. 779, 58 L.Ed. 1363; Priest v. Board of Trustees of Town of Las
Vegas, 232 U.S. 604, 34 S.Ct. 443, 58 L.Ed. 751; Roller v. Holly, 176 U.S. 398, 20 S.Ct. 410, 44
L.Ed. 520. The notice must be of such nature as reasonably to convey the required information,
Grannis v. Ordean, supra, and it must afford a reasonable time for those interested to make their
appearance, Roller v. Holly, supra, and cf. Goodrich v. Ferris,214 U.S. 71, 29 S.Ct. 580, 53 L.Ed.
914. But if with due regard for the practicalities and peculiarities of the case these conditions are
reasonably met the constitutional requirements are satisfied. 'The criterion is not the possibility of
conceivable injury, but the just and reasonable character of the requirements, having reference to
the subject with which the statute deals.' American Land Co. v. Zeiss, 219 U.S. 47, 67, 31 S.Ct. 200,
207, 55 L.Ed. 82, and see Blinn v. Nelson, 222 U.S. 1, 7, 32 S.Ct. 1, 2, 56 L.Ed. 65, Ann.Cas.1913B,
555.
But when notice is a person's due, process which is a mere gesture is not due process. The means
employed must be such as one desirous of actually informing the absentee might reasonably adopt
to accomplish it. The reasonableness and hence the constitutional validity of any chosen method
may be defended on the ground that it is in itself reasonably certain to inform those affected,
compare Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091, with Wuchter v. Pizzutti, 276
U.S. 13, 48 S.Ct. 259, 72 L.Ed. 446, 57 A.L.R. 1230, or, where conditions do not reasonably permit
such notice, that the form chosen is not substantially less likely to bring home notice than other of
the feasible and customary substitutes.
It would be idle to pretend that publication alone as prescribed here, is a reliable means of
acquainting interested parties of the fact that their rights are before the courts. It is not an accident
that the greater number of cases reaching this Court on the question of adequacy of notice have
been concerned with actions founded on process constructively served through local newspapers.
Chance alone brings to the attention of even a local resident an advertisement in small type inserted
in the back pages of a newspaper, and if he makes his home outside the area of the newspaper's
normal circulation the odds that the information will never reach him are large indeed. The chance of
actual notice is further reduced when as here the notice required does not even name those whose

attention it is supposed to attract, and does not inform acquaintances who might call it to attention. In
weighing its sufficiency on the basis of equivalence with actual notice we are unable to regard this as
more than a feint.
Nor is publication here reinforced by steps likely to attract the parties' attention to the proceeding. It
is true that publication traditionally has been acceptable as notification supplemental to other action
which in itself may reasonably be expected to convey a warning. The ways or an owner with tangible
property are such that he usually arranges means to learn of any direct attack upon his possessory
or proprietary rights. Hence, libel of a ship, attachment of a chattel or entry upon real estate in the
name of law may reasonably be expected to come promptly to the owner's attention. When the state
within which the owner has located such property seizes it for some reason, publication or posting
affords an additional measure of notification. A state may indulge the assumption that one who has
left tangible property in the state either has abandoned it, in which case proceedings against it
deprive him of nothing, cf. Anderson National Bank v. luckett, 321 U.S. 233, 64 S.Ct. 599, 88 L.Ed.
692, 151 A.L.R. 824; Security Savings Bank v. California, 263 U.S. 282, 44 S.Ct. 108, 68 L.Ed. 301,
31 A.L.R. 391, or that he has left some caretaker under a duty to let him know that it is being
jeopardized. Ballard v. Hunter, 204 U.S. 241, 27 S.Ct. 261, 51 L.Ed. 461; Huling v. Kaw Valley Ry. &
Imp. Co., 130 U.S. 559, 9 S.Ct. 603, 32 L.Ed. 1045. As phrased long ago by Chief Justice Marshall
in The Mary, 9 Cranch 126, 144, 3 L.Ed. 678, 'It is the part of common prudence for all those who
have any interest in (a thing), to guard that interest by persons who are in a situation to protect it.'
In the case before us there is, of course, no abandonment. On the other hand these beneficiaries do
have a resident fiduciary as caretaker of their interest in this property. But it is their caretaker who in
the accounting becomes their adversary. Their trustee is released from giving notice of jeopardy, and
no one else is expected to do so. Not even the special guardian is required or apparently expected
to communicate with his ward and client, and, of course, if such a duty were merely transferred from
the trustee to the guardian, economy would not be served and more likely the cost would be
increased.
This Court has not hesitated to approve of resort to publication as a customary substitute in another
class of cases where it is not reasonably possible or practicable to give more adequate warning.
Thus it has been recognized that, in the case of persons missing or unknown, employment of an
indirect and even a probably futile means of notification is all that the situation permits and creates
no constitutional bar to a final decree foreclosing their rights. Cunnius v. Reading School District, 198
U.S. 458, 25 S.Ct. 721, 49 L.Ed. 1125, 3 Ann.Cas. 1121; Blinn v. Nelson, 222 U.S. 1, 32 S.Ct. 1, 56
L.Ed. 65, Ann.Cas.1913B, 555; and see Jacob v. Roberts, 223 U.S. 261, 32 S.Ct. 303, 56 L.Ed. 429.
Those beneficiaries represented by appellant whose interests or whereabouts could not with due
diligence be ascertained come clearly within this category. As to them the statutory notice is
sufficient. However great the odds that publication will never reach the eyes of such unknown
parties, it is not in the typical case much more likely to fail than any of the choices open to legislators
endeavoring to prescribe the best notice practicable.

Nor do we consider it unreasonable for the State to dispense with more certain notice to those
beneficiaries whose interests are either conjectural or future or, although they could be discovered
upon investigation, do not in due course of business come to knowledge of the common trustee.
Whatever searches might be required in another situation under ordinary standards of diligence, in
view of the character of the proceedings and the nature of the interests here involved we think them
unnecessary. We recognize the practical difficulties and costs that would be attendant on frequent
investigations into the status of great numbers of beneficiaries, many of whose interests in the
common fund are so remote as to be ephemeral; and we have no doubt that such impracticable and
extended searches are not required in the name of due process. The expense of keeping informed
from day to day of substitutions among even current income beneficiaries and presumptive
remaindermen, to say nothing of the far greater number of contingent beneficiaries, would impose a
severe burden on the plan, and would likely dissipate its advantages. These are practical matters in
which we should be reluctant to disturb the judgment of the state authorities.
Accordingly we overrule appellant's constitutional objections to published notice insofar as they are
urged on behalf of any beneficiaries whose interests or addresses are unknown to the trustee.
As to known present beneficiaries of known place of residence, however, notice by publication
stands on a different footing. Exceptions in the name of necessity do not sweep away the rule that
within the limits of practicability notice must be such as is reasonably calculated to reach interested
parties. Where the names and post office addresses of those affected by a proceeding are at hand,
the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.
The trustee has on its books the names and addresses of the income beneficiaries represented by
appellant, and we find no tenable ground for dispensing with a serious effort to inform them
personally of the accounting, at least by ordinary mail to the record addresses. Cf. Wuchter v.
Pizzutti, supra. Certainly sending them a copy of the statute months and perhaps years in advance
does not answer this purpose. The trustee periodically remits their income to them, and we think that
they mgith reasonably expect that with or apart from their remittances word might come to them
personally that steps were being taken affecting their interests.
We need not weigh contentions that a requirement of personal service of citation on even the large
number of known resident or nonresident beneficiaries would, by reasons of delay if not of expense,
seriously interfere with the proper administration of the fund. Of course personal service even
without the jurisdiction of the issuing authority serves the end of actual and personal notice,
whatever power of compulsion it might lack. However, no such service is required under the
circumstances. This type of trust presupposes a large number of small interests. The individual
interest does not stand alone but is identical with that of a class. The rights of each in the integrity of
the fund and the fidelity of the trustee are shared by many other beneficiaries. Therefore notice
reasonably certain to reach most of those interested in objecting is likely to safeguard the interests of
all, since any objections sustained would inure to the benefit of all. We think that under such
circumstances reasonable risks that notice might not actually reach every beneficiary are justifiable.
'Now and then an extraordinary case may turn up, but constitutional law, like other mortal

contrivances, has to take some chances, and in the great majority of instances, no doubt, justice will
be done.' Blinn v. Nelson, supra,222 U.S. at page 7, 32 S.Ct. at page 2, 56 L.Ed. 65,
Ann.Cas.1913B, 555.
The statutory notice to known beneficiaries is inadequate, not because in fact it fails to reach
everyone, but because under the circumstances it is not reasonably calculated to reach those who
could easily be informed by other means at hand. However it may have been in former times, the
mails today are recognized as an efficient and inexpensive means of communication. Moreover, the
fact that the trust company has been able to give mailed notice to known beneficiaries at the time the
common trust fund was established is persuasive that postal notification at the time of accounting
would not seriously burden the plan.
In some situations the law requires greater precautions in its proceedings than the business world
accepts for its own purposes. In few, if any, will it be satisfied with less. Certainly it is instructive, in
determining the reasonableness of the impersonal broadcast notification here used, to ask whether it
would satisfy a prudent man of business, counting his pennies but finding it in his interest to convey
information to many persons whose names and addresses are in his files. We are not satisfied that it
would. Publication may theoretically be available for all the world to see, but it is too much in our day
to suppose that each or any individual beneficiary does or could examine all that is published to see
if something may be tucked away in it that affects his property interests. We have before indicated in
reference to notice by publication that, 'Great caution should be used not to let fiction deny the fair
play that can be secured only by a pretty close adhesion to fact.' McDonald v. Mabee, 243 U.S. 90,
91, 37 S.Ct. 343, 61 L.Ed. 608, L.R.A.1917F, 458.
We hold the notice of judicial settlement of accounts required by the New York Banking Law 100c(12) is incompatible with the requirements of the Fourteenth Amendment as a basis for adjudication
depriving known persons whose whereabouts are also known of substantial property rights.
Accordingly the judgment is reversed and the cause remanded for further proceedings not
inconsistent with this opinion.
Reversed.
Mr. Justice DOUGLAS took no part in the consideration or decision of this case.
TOP

Mr. Justice BURTON, dissenting.

These common trusts are available only when the instruments creating the participating trusts permit
participation in the common fund. Whether or not further notice to beneficiaries should supplement
the notice and representation here provided is properly within the discretion of the State. The
Federal Constitution does not require it here.

United States Supreme Court

SHAFFER v. HEITNER, (1977)
No. 75-1812
Argued: February 22, 1977

Decided: June 24, 1977

Appellee, a nonresident of Delaware, filed a shareholder's derivative suit in a Delaware Chancery

Court, naming as defendants a corporation and its subsidiary, as well as 28 present or former
corporate officers or directors, alleging that the individual defendants had violated their duties to the
corporation by causing it and its subsidiary to engage in actions (which occurred in Oregon) that
resulted in corporate liability for substantial damages in a private antitrust suit and a large fine in a
criminal contempt action. Simultaneously, appellee, pursuant to Del. Code Ann., Tit. 10, 366 (1975),
filed a motion for sequestration of the Delaware property of the individual defendants, all
nonresidents of Delaware, accompanied by an affidavit identifying the property to be sequestered as
stock, options, warrants, and various corporate rights of the defendants. A sequestration order was
issued pursuant to which shares and options belonging to 21 defendants (appellants) were "seized"
and "stop transfer" orders were placed on the corporate books. Appellants entered a special
appearance to quash service of process and to vacate the sequestration order, contending that the
ex parte sequestration procedure did not accord them due process; that the property seized was not
capable of attachment in Delaware; and that they did not have sufficient contacts with Delaware to
sustain jurisdiction of that State's courts under the rule of International Shoe Co. v. Washington, 326
U.S. 310 . In that case the Court (after noting that the historical basis of in personam jurisdiction was
a court's power over the defendant's person, making his presence within the court's territorial
jurisdiction a prerequisite to its rendition of a personally binding judgment against him, Pennoyer v.
Neff, 95 U.S. 714 ) held that that power was no longer the central concern and that "due process
requires only that in order to subject a defendant to a judgment in personam, if he be not present
within the territory of the forum, he have certain minimum contacts with it such that the maintenance
of the suit does not offend `traditional notions of fair play and substantial justice'" (and thus the focus
shifted to the relationship among the defendant, the forum, and the litigation, rather than the mutually
exclusive sovereignty of the States on which the rules of Pennoyer had rested). The Court of
Chancery, rejecting appellants' arguments, upheld the 366 procedure [433 U.S. 186, 187] of
compelling the personal appearance of a nonresident defendant to answer and defend a suit brought
against him in a court of equity, which is accomplished by the appointment of a sequestrator to seize
and hold the property of the nonresident located in Delaware subject to court order, with release of
the property being made upon the defendant's entry of a general appearance. The court held that
the limitation on the purpose and length of time for which sequestered property is held comported
with due process and that the statutory situs of the stock (under a provision making Delaware the
situs of ownership of the capital stock of all corporations existing under the laws of that State)
provided a sufficient basis for the exercise of quasi in rem jurisdiction by a Delaware court. The
Delaware Supreme Court affirmed, concluding that International Shoe raised no constitutional barrier

to the sequestration procedure because "jurisdiction under 366 remains . . . quasi in rem founded on
the presence of capital stock [in Delaware], not on prior contact by defendants with this forum." Held:
1. Whether or not a State can assert jurisdiction over a nonresident must be evaluated according to
the minimum-contacts standard of International Shoe Co. v. Washington, supra. Pp. 207-212.
(a) In order to justify an exercise of jurisdiction in rem, the basis for jurisdiction must be sufficient to
justify exercising "jurisdiction over the interests of persons in the thing." The presence of property in
a State may bear upon the existence of jurisdiction by providing contacts among the forum State, the
defendant, and the litigation, as for example, when claims to the property itself are the source of the
underlying controversy between the plaintiff and defendant, where it would be unusual for the State
where the property is located not to have jurisdiction. Pp. 207-208.
(b) But where, as in the instant quasi in rem action, the property now serving as the basis for statecourt jurisdiction is completely unrelated to the plaintiff's cause of action, the presence of the
property alone, i. e., absent other ties among the defendant, the State, and the litigation, would not
support the State's jurisdiction. Pp. 208-209.
(c) Though the primary rationale for treating the presence of property alone as a basis for jurisdiction
is to prevent a wrongdoer from avoiding payment of his obligations by removal of his assets to a
place where he is not subject to an in personam suit, that is an insufficient justification for
recognizing jurisdiction without regard to whether the property is in the State for that purpose.
Moreover, the availability of attachment procedures and the protection of the Full Faith and Credit
Clause, also militate against that rationale. Pp. 209-210. [433 U.S. 186, 188]
(d) The fairness standard of International Shoe can be easily applied in the vast majority of cases. P.
211.
(e) Though jurisdiction based solely on the presence of property in a State has had a long history,
"traditional notions of fair play and substantial justice" can be as readily offended by the perpetuation
of ancient forms that are no longer justified as by the adoption of new procedures that do not
comport with the basic values of our constitutional heritage. Cf. Sniadach v. Family Finance
Corp, 395 U.S. 337, 340 ; Wolf v. Colorado, 338 U.S. 25, 27 . Pp. 211-212.
2. Delaware's assertion of jurisdiction over appellants, based solely as it is on the statutory presence
of appellants' property in Delaware, violates the Due Process Clause, which "does not contemplate
that a state may make binding a judgment . . . against an individual or corporate defendant with
which the state has no contacts, ties, or relations." International Shoe, supra, at 319. Pp. 213-217.
(a) Appellants' holdings in the corporation, which are not the subject matter of this litigation and are
unrelated to the underlying cause of action, do not provide contacts with Delaware sufficient to
support jurisdiction of that State's courts over appellants. P. 213.
(b) Nor is Delaware state-court jurisdiction supported by that State's interest in supervising the
management of a Delaware corporation and defining the obligations of its officers and directors,

since Delaware bases jurisdiction, not on appellants' status as corporate fiduciaries, but on the
presence of their property in the State. Moreover, sequestration has been available in any suit
against a nonresident whether against corporate fiduciaries or not. Pp. 213-215.
(c) Though it may be appropriate for Delaware law to govern the obligations of appellants to the
corporation and stockholders, this does not mean that appellants have "purposefully avail[ed
themselves] of the privilege of conducting activities within the forum State," Hanson v. Denckla, 357
U.S. 235, 253 . Appellants, who were not required to acquire interests in the corporation in order to
hold their positions, did not by acquiring those interests surrender their right to be brought to
judgment in the States in which they had "minimum contacts." Pp. 215-216.
361 A. 2d 225, reversed.
MARSHALL, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART,
WHITE, BLACKMUN, and POWELL, JJ., joined, and in Parts I-III of which BRENNAN, J., joined.
POWELL, J., filed a concurring opinion, post, p. 217. STEVENS, J., filed an opinion concurring in
the [433 U.S. 186, 189] judgment, post, p. 217. BRENNAN, J., filed an opinion concurring in part
and dissenting in part, post, p. 219. REHNQUIST, J., took no part in the consideration or decision of
the case.
John R. Reese argued the cause for appellants. With him on the briefs were Edmund N. Carpenter
II, R. Franklin Balotti, and Lynn H. Pasahow.
Michael F. Maschio argued the cause for appellee. With him on the brief was Joshua M. Twilley.
MR. JUSTICE MARSHALL delivered the opinion of the Court.
The controversy in this case concerns the constitutionality of a Delaware statute that allows a court
of that State to take jurisdiction of a lawsuit by sequestering any property of the defendant that
happens to be located in Delaware. Appellants contend that the sequestration statute as applied in
this case violates the Due Process Clause of the Fourteenth Amendment both because it permits the
state courts to exercise jurisdiction despite the absence of sufficient contacts among the defendants,
the litigation, and the State of Delaware and because it authorizes the deprivation of defendants'
property without providing adequate procedural safeguards. We find it necessary to consider only
the first of these contentions.
I
Appellee Heitner, a nonresident of Delaware, is the owner of one share of stock in the Greyhound
Corp., a business incorporated under the laws of Delaware with its principal place of business in
Phoenix, Ariz. On May 22, 1974, he filed a shareholder's derivative suit in the Court of Chancery for
New Castle Country, Del., in which he named as defendants Greyhound, its wholly owned subsidiary
Greyhound Lines, Inc., 1 and 28 present or former officers or directors of one or [433 U.S. 186,
190] both of the corporations. In essence, Heitner alleged that the individual defendants had
violated their duties to Greyhound by causing it and its subsidiary to engage in actions that resulted

in the corporations being held liable for substantial damages in a private antitrust suit 2 and a large
fine in a criminal contempt action. 3 The activities which led to these penalties took place in Oregon.
Simultaneously with his complaint, Heitner filed a motion for an order of sequestration of the
Delaware property of the individual defendants pursuant to Del. Code Ann., Tit. 10, 366
(1975). 4 This motion was accompanied by a supporting [433 U.S. 186, 191] affidavit of counsel
which stated that the individual defendants were nonresidents of Delaware. The affidavit identified
the property to be sequestered as
"common stock, 3% Second Cumulative Preferenced Stock and stock unit credits of the Defendant
Greyhound Corporation, a Delaware corporation, as well as all options and all warrants to purchase
said stock issued to said individual Defendants and all contractural [sic] obligations, all rights, debts
or credits due or accrued to or for the benefit of any of the said Defendants under any type of written
agreement, contract or other legal instrument of any kind whatever between any of the individual
Defendants and said corporation."
The requested sequestration order was signed the day the motion was filed. 5 Pursuant to that
order, the sequestrator 6 [433 U.S. 186, 192] "seized" approximately 82,000 shares of Greyhound
common stock belonging to 19 of the defendants, 7 and options belonging to another 2
defendants. 8 These seizures were accomplished by placing "stop transfer" orders or their
equivalents on the books of the Greyhound Corp. So far as the record shows, none of the
certificates representing the seized property was physically present in Delaware. The stock was
considered to be in Delaware, and so subject to seizure, by virtue of Del. Code Ann., Tit. 8, 169
(1975), which makes Delaware the situs of ownership of all stock in Delaware corporations. 9
All 28 defendants were notified of the initiation of the suit by certified mail directed to their last known
addresses and by publication in a New Castle County newspaper. The 21 defendants whose
property was seized (hereafter referred to as appellants) responded by entering a special
appearance for [433 U.S. 186, 193] the purpose of moving to quash service of process and to
vacate the sequestration order. They contended that the ex parte sequestration procedure did not
accord them due process of law and that the property seized was not capable of attachment in
Delaware. In addition, appellants asserted that under the rule of International Shoe Co. v.
Washington, 326 U.S. 310 (1945), they did not have sufficient contacts with Delaware to sustain the
jurisdiction of that State's courts.
The Court of Chancery rejected these arguments in a letter opinion which emphasized the purpose
of the Delaware sequestration procedure:
"The primary purpose of `sequestration' as authorized by 10 Del. C. 366 is not to secure possession
of property pending a trial between resident debtors and creditors on the issue of who has the right
to retain it. On the contrary, as here employed, `sequestration' is a process used to compel the
personal appearance of a nonresident defendant to answer and defend a suit brought against him in
a court of equity. Sands v. Lefcourt Realty Corp., Del. Supr., 117 A. 2d 365 (1955). It is accomplished
by the appointment of a sequestrator by this Court to seize and hold property of the nonresident

located in this State subject to further Court order. If the defendant enters a general appearance, the
sequestered property is routinely released, unless the plaintiff makes special application to continue
its seizure, in which event the plaintiff has the burden of proof and persuasion." App. 75-76.
This limitation on the purpose and length of time for which sequestered property is held, the court
concluded, rendered inapplicable the due process requirements enunciated in Sniadach v. Family
Finance Corp., 395 U.S. 337 (1969); Fuentes v. Shevin, 407 U.S. 67 (1972); and Mitchell v. W. T.
Grant Co., 416 U.S. 600 (1974). App. 75-76, 80, 83-85. The court also found no state-law or federal
constitutional barrier to the sequestrator's reliance on Del. Code Ann., Tit. 8, 169 [433 U.S. 186,
194] (1975). App. 76-79. Finally, the court held that the statutory Delaware situs of the stock
provided a sufficient basis for the exercise of quasi in rem jurisdiction by a Delaware court. Id., at 8587.
On appeal, the Delaware Supreme Court affirmed the judgment of the Court of Chancery.
Greyhound Corp. v. Heitner, 361 A. 2d 225 (1976). Most of the Supreme Court's opinion was
devoted to rejecting appellants' contention that the sequestration procedure is inconsistent with the
due process analysis developed in the Sniadach line of cases. The court based its rejection of that
argument in part on its agreement with the Court of Chancery that the purpose of the sequestration
procedure is to compel the appearance of the defendant, a purpose not involved in the Sniadach
cases. The court also relied on what it considered the ancient origins of the sequestration procedure
and approval of that procedure in the opinions of this Court, 10 Delaware's interest in asserting
jurisdiction to adjudicate claims of mismanagement of a Delaware corporation, and the safeguards
for defendants that it found in the Delaware statute. 361 A. 2d, at 230-236. [433 U.S. 186, 195]
Appellants' claim that the Delaware courts did not have jurisdiction to adjudicate this action received
much more cursory treatment. The court's analysis of the jurisdictional issue is contained in two
paragraphs:
"There are significant constitutional questions at issue here but we say at once that we do not deem
the rule of International Shoe to be one of them. . . . The reason, of course, is that jurisdiction under
366 remains . . . quasi in rem founded on the presence of capital stock here, not on prior contact by
defendants with this forum. Under 8 Del. C. 169 the `situs of the ownership of the capital stock of all
corporations existing under the laws of this State . . . [is] in this State,' and that provides the initial
basis for jurisdiction. Delaware may constitutionally establish situs of such shares here, . . . it has
done so and the presence thereof provides the foundation for 366 in this case. . . . On this issue we
agree with the analysis made and the conclusion reached by Judge Stapleton in U.S. Industries, Inc.
v. Gregg, D. Del., 348 F. Supp. 1004 (1972). 11
"We hold that seizure of the Greyhound shares is not invalid because plaintiff has failed to meet the
prior contacts tests of International Shoe." Id., at 229.
We noted probable jurisdiction. 429 U.S. 813 . 12 We reverse. [433 U.S. 186, 196]
II

The Delaware courts rejected appellants' jurisdictional challenge by noting that this suit was brought
as a quasi in rem proceeding. Since quasi in rem jurisdiction is traditionally based on attachment or
seizure of property present in the jurisdiction, not on contacts between the defendant and the State,
the courts considered appellants' claimed lack of contacts with Delaware to be unimportant. This
categorical analysis assumes the continued soundness of the conceptual structure founded on the
century-old case of Pennoyer v. Neff, 95 U.S. 714 (1878).
Pennoyer was an ejectment action brought in federal court under the diversity jurisdiction. Pennoyer,
the defendant in that action, held the land under a deed purchased in a sheriff's sale conducted to
realize on a judgment for attorney's fees obtained against Neff in a previous action by one Mitchell.
At the time of Mitchell's suit in an Oregon State court, Neff was a nonresident of Oregon. An Oregon
statute allowed service by publication on nonresidents who had property in the State, 13 and Mitchell
had used that procedure to bring Neff [433 U.S. 186, 197] before the court. The United States
Circuit Court for the District of Oregon, in which Neff brought his ejectment action, refused to
recognize the validity of the judgment against Neff in Mitchell's suit, and accordingly awarded the
land to Neff. 14 This Court affirmed.
Mr. Justice Field's opinion for the Court focused on the territorial limits of the States' judicial powers.
Although recognizing that the States are not truly independent sovereigns, Mr. Justice Field found
that their jurisdiction was defined by the "principles of public law" that regulate the relationships
among independent nations. The first of those principles was "that every State possesses exclusive
jurisdiction and sovereignty over persons and property within its territory." The second was "that no
State can exercise direct jurisdiction and authority over persons or property without its territory." Id.,
at 722. Thus, "in virtue of the State's jurisdiction over the property of the non-resident situated within
its limits," the state courts "can inquire into that non-resident's obligations to its own citizens . . . to
the extent necessary to control the disposition of the property." Id., at 723. The Court recognized that
if the conclusions of that inquiry were adverse to the nonresident property owner, his interest in the
property would be affected. Ibid. Similarly, if the defendant consented to the jurisdiction of the state
courts or was personally served within the State, a judgment could affect his interest in property
outside the State. But any attempt "directly" to assert extraterritorial jurisdiction over persons or
property would offend sister States and exceed the inherent limits of the State's power. A judgment
resulting from such an attempt, Mr. Justice Field concluded, was not only unenforceable [433 U.S.
186, 198] in other States, 15 but was also void in the rendering State because it had been obtained
in violation of the Due Process Clause of the Fourteenth Amendment. Id., at 732-733. See also, e.
g., Freeman v. Alderson, 119 U.S. 185, 187 -188 (1886).
This analysis led to the conclusion that Mitchell's judgment against Neff could not be validly based
on the State's power over persons within its borders, because Neff had not been personally served
in Oregon, nor had he consensually appeared before the Oregon court. The Court reasoned that
even if Neff had received personal notice of the action, service of process outside the State would
have been ineffectual since the State's power was limited by its territorial boundaries. Moreover, the
Court held, the action could not be sustained on the basis of the State's power over property within

its borders because that property had not been brought before the court by attachment or any other
procedure prior to judgment. 16 Since the judgment which authorized the sheriff's sale was therefore
invalid, the sale transferred no title. Neff regained his land.
From our perspective, the importance of Pennoyer is not its result, but the fact that its principles and
corollaries derived from them became the basic elements of the constitutional [433 U.S. 186,
199] doctrine governing state-court jurisdiction. See, e. g., Hazard, A General Theory of State-Court
Jurisdiction, 1965 Sup. Ct. Rev. 241 (hereafter Hazard). As we have noted, under Pennoyer state
authority to adjudicate was based on the jurisdiction's power over either persons or property. This
fundamental concept is embodied in the very vocabulary which we use to describe judgments. If a
court's jurisdiction is based on its authority over the defendant's person, the action and judgment are
denominated "in personam" and can impose a personal obligation on the defendant in favor of the
plaintiff. If jurisdiction is based on the court's power over property within its territory, the action is
called "in rem" or "quasi in rem." The effect of a judgment in such a case is limited to the property
that supports jurisdiction and does not impose a personal liability on the property owner, since he is
not before the court. 17 In Pennoyer's terms, the owner is affected only "indirectly" by an in rem
judgment adverse to his interest in the property subject to the court's disposition.
By concluding that "[t]he authority of every tribunal is necessarily restricted by the territorial limits of
the State in which it is established," 95 U.S., at 720 , Pennoyer sharply limited the availability of in
personam jurisdiction over defendants not resident in the forum State. If a nonresident defendant
could not be found in a State, he could not be sued there. On the other hand, since the State in
which property [433 U.S. 186, 200] was located was considered to have exclusive sovereignty over
that property, in rem actions could proceed regardless of the owner's location. Indeed, since a
State's process could not reach beyond its borders, this Court held after Pennoyer that due process
did not require any effort to give a property owner personal notice that his property was involved in
an in rem proceeding. See, e. g., Ballard v. Hunter, 204 U.S. 241 (1907); Arndt v. Griggs, 134 U.S.
316 (1890); Huling v. Kaw Valley R. Co., 130 U.S. 559 (1889).
The Pennoyer rules generally favored nonresident defendants by making them harder to sue. This
advantage was reduced, however, by the ability of a resident plaintiff to satisfy a claim against a
nonresident defendant by bringing into court any property of the defendant located in the plaintiff's
State. See, e. g., Zammit, Quasi-In-Rem Jurisdiction: Outmoded and Unconstitutional?, 49 St. John's
L. Rev. 668, 670 (1975). For example, in the well-known case of Harris v. Balk, 198 U.S. 215 (1905),
Epstein, a resident of Maryland, had a claim against Balk, a resident of North Carolina. Harris,
another North Carolina resident, owed money to Balk. When Harris happened to visit Maryland,
Epstein garnished his debt to Balk. Harris did not contest the debt to Balk and paid it to Epstein's
North Carolina attorney. When Balk later sued Harris in North Carolina, this Court held that the Full
Faith and Credit Clause, U.S. Const., Art. IV, 1, required that Harris' payment to Epstein be treated
as a discharge of his debt to Balk. This Court reasoned that the debt Harris owed Balk was an
intangible form of property belonging to Balk, and that the location of that property traveled with the
debtor. By obtaining personal jurisdiction over Harris, Epstein had "arrested" his debt to Balk, 198

U.S., at 223 , and brought it into the Maryland court. Under the structure established by Pennoyer,
Epstein was then entitled to proceed against that debt to vindicate his claim against Balk, even
though Balk himself was not subject to the jurisdiction [433 U.S. 186, 201] of a Maryland
tribunal. 18 See also, e. g., Louisville & N. R. Co. v. Deer, 200 U.S. 176 (1906); Steele v. G. D.
Searle & Co., 483 F.2d 339 (CA5 1973), cert. denied, 415 U.S. 958(1974).
Pennoyer itself recognized that its rigid categories, even as blurred by the kind of action typified by
Harris, could not accommodate some necessary litigation. Accordingly, Mr. Justice Field's opinion
carefully noted that cases involving the personal status of the plaintiff, such as divorce actions, could
be adjudicated in the plaintiff's home State even though the defendant could not be served within
that State. 95 U.S., at 733 -735. Similarly, the opinion approved the practice of considering a foreign
corporation doing business in a State to have consented to being sued in that State. Id., at 735-736;
see Lafayette Ins. Co. v. French, 18 How. 404 (1856). This [433 U.S. 186, 202] basis for in
personam jurisdiction over foreign corporations was later supplemented by the doctrine that a
corporation doing business in a State could be deemed "present" in the State, and so subject to
service of process under the rule of Pennoyer, See, e. g., International Harvester Co. v.
Kentucky, 234 U.S. 579 (1914); Philadelphia & Reading R. Co. v. McKibbin, 243 U.S. 264 (1917).
See generally Note, Developments in the Law, State-Court Jurisdiction, 73 Harv. L. Rev. 909, 919923 (1960) (hereafter Developments).
The advent of automobiles, with the concomitant increase in the incidence of individuals causing
injury in States where they were not subject to in personam actions under Pennoyer, required further
moderation of the territorial limits on jurisdictional power. This modification, like the accommodation
to the realities of interstate corporate activities, was accomplished by use of a legal fiction that left
the conceptual structure established in Pennoyer theoretically unaltered. Cf. Olberding v. Illinois
Central R. Co., 346 U.S. 338, 340 -341 (1953). The fiction used was that the out-of-state motorist,
who it was assumed could be excluded altogether from the State's highways, had by using those
highways appointed a designated state official as his agent to accept process. See Hess v.
Pawloski, 274 U.S. 352 (1927). Since the motorist's "agent" could be personally served within the
State, the state courts could obtain in personam jurisdiction over the nonresident driver.
The motorists' consent theory was easy to administer since it required only a finding that the out-ofstate driver had used the State's roads. By contrast, both the fictions of implied consent to service on
the part of a foreign corporation and of corporate presence required a finding that the corporation
was "doing business" in the forum State. Defining the criteria for making that finding and deciding
whether they were met absorbed much judicial energy. See, e. g., International Shoe [433 U.S. 186,
203] Co. v. Washington, 326 U.S., at 317 -319. While the essentially quantitative tests which
emerged from these cases purported simply to identify circumstances under which presence or
consent could be attributed to the corporation, it became clear that they were in fact attempting to
ascertain "what dealings make it just to subject a foreign corporation to local suit." Hutchinson v.
Chase & Gilbert, 45 F.2d 139, 141 (CA2 1930) (L. Hand, J.). In International Shoe, we acknowledged
that fact.

The question in International Shoe was whether the corporation was subject to the judicial and
taxing jurisdiction of Washington. Mr. Chief Justice Stone's opinion for the Court began its analysis of
that question by noting that the historical basis of in personam jurisdiction was a court's power over
the defendant's person. That power, however, was no longer the central concern:
"But now that the capias ad respondendum has given way to personal service of summons or other
form of notice, due process requires only that in order to subject a defendant to a judgment in
personam, if he be not present within the territory of the forum, he have certain minimum contacts
with it such that the maintenance of the suit does not offend `traditional notions of fair play and
substantial justice.' Milliken v. Meyer, 311 U.S. 457, 463 ." 326 U.S., at 316 .
Thus, the inquiry into the State's jurisdiction over a foreign corporation appropriately focused not on
whether the corporation was "present" but on whether there have been
"such contacts of the corporation with the state of the forum as make it reasonable, in the context of
our federal system of government, to require the corporation to defend the particular suit which is
brought there." Id., at 317. [433 U.S. 186, 204]
Mechanical or quantitative evaluations of the defendant's activities in the forum could not resolve the
question of reasonableness:
"Whether due process is satisfied must depend rather upon the quality and nature of the activity in
relation to the fair and orderly administration of the laws which it was the purpose of the due process
clause to insure. That clause does not contemplate that a state may make binding a judgment in
personam against an individual or corporate defendant with which the state has no contacts, ties, or
relations." Id., at 319. 19
Thus, the relationship among the defendant, the forum, and the litigation, rather than the mutually
exclusive sovereignty of the States on which the rules of Pennoyer rest, became the central concern
of the inquiry into personal jurisdiction. 20 The immediate effect of this departure from Pennoyer's
conceptual apparatus was to increase the ability of the state courts to obtain personal jurisdiction
over nonresident defendants. See, e. g., Green, Jurisdictional Reform in California, [433 U.S. 186,
205] 21 Hastings L. J. 1219, 1231-1233 (1970); Currie, The Growth of the Long Arm: Eight Years of
Extended Jurisdiction in Illinois, 1963 U. Ill. L. F. 533; Developments 1000-1008.
No equally dramatic change has occurred in the law governing jurisdiction in rem. There have,
however, been intimations that the collapse of the in personam wing of Pennoyer has not left that
decision unweakened as a foundation for in rem jurisdiction. Well-reasoned lower court opinions
have questioned the proposition that the presence of property in a State gives that State jurisdiction
to adjudicate rights to the property regardless of the relationship of the underlying dispute and the
property owner to the forum. See, e. g., U.S. Industries, Inc. v. Gregg, 540 F.2d 142 (CA3 1976),
cert. pending, No. 76-359; Jonnet v. Dollar Savings Bank, 530 F.2d 1123, 1130-1143 (CA3 1976)
(Gibbons, J., concurring); Camire v. Scieszka, 116 N. H. 281, 358 A. 2d 397 (1976); Bekins v. Huish,
1 Ariz. App. 258, 401 P.2d 743 (1965); Atkinson v. Superior Court, 49 Cal. 2d 338, 316 P.2d 960

(1957), appeal dismissed and cert. denied sub nom. Columbia Broadcasting System v. Atkinson, 357
U.S. 569 (1958). The overwhelming majority of commentators have also rejected Pennoyer's
premise that a proceeding "against" property is not a proceeding against the owners of that property.
Accordingly, they urge that the "traditional notions of fair play and substantial justice" that govern a
State's power to adjudicate in personam should also govern its power to adjudicate personal rights
to property located in the State. See, e. g., Von Mehren & Trautman, Jurisdiction to Adjudicate: A
Suggested Analysis, 79 Harv. L. Rev. 1121 (1966) (hereafter Von Mehren & Trautman); Traynor, Is
This Conflict Really Necessary?, 37 Texas L. Rev. 657 (1959) (hereafter Traynor); Ehrenzweig, The
Transient Rule of Personal Jurisdiction: The "Power" Myth and Forum Conveniens, 65 Yale L. J. 289
(1956); Developments; Hazard. [433 U.S. 186, 206]
Although this Court has not addressed this argument directly, we have held that property cannot be
subjected to a court's judgment unless reasonable and appropriate efforts have been made to give
the property owners actual notice of the action. Schroeder v. City of New York, 371 U.S. 208 (1962);
Walker v. City of Hutchinson, 352 U.S. 112 (1956); Mullane v. Central Hanover Bank & Trust
Co., 339 U.S. 306 (1950). This conclusion recognizes, contrary to Pennoyer, that an adverse
judgment in rem directly affects the property owner by divesting him of his rights in the property
before the court. Schroeder v. City of New York, supra, at 213; cf. Continental Grain Co. v. Barge
FBL-585, 364 U.S. 19 (1960) (separate actions against barge and barge owner are one "civil action"
for purpose of transfer under 28 U.S.C. 1404 (a)). Moreover, in Mullane we held that Fourteenth
Amendment rights cannot depend on the classification of an action as in rem or in personam, since
that is
"a classification for which the standards are so elusive and confused generally and which, being
primarily for state courts to define, may and do vary from state to state." 339 U.S., at 312 .
It is clear, therefore, that the law of state-court jurisdiction no longer stands securely on the
foundation established in Pennoyer. 21 We think that the time is ripe to consider whether the
standard of fairness and substantial justice set forth in International Shoe should be held to govern
actions in rem as well as in personam. [433 U.S. 186, 207]
III
The case for applying to jurisdiction in rem the same test of "fair play and substantial justice" as
governs assertions of jurisdiction in personam is simple and straightforward. It is premised on
recognition that "[t]he phrase, `judicial jurisdiction over a thing,' is a customary elliptical way of
referring to jurisdiction over the interests of persons in a thing." Restatement (Second) of Conflict of
Laws 56, Introductory Note (1971) (hereafter Restatement). 22 This recognition leads to the
conclusion that in order to justify an exercise of jurisdiction in rem, the basis for jurisdiction must be
sufficient to justify exercising "jurisdiction over the interests of persons in a thing." 23 The standard
for determining whether an exercise of jurisdiction over the interests of persons is consistent with the
Due Process Clause is the minimum-contacts standard elucidated in International Shoe.

This argument, of course, does not ignore the fact that the presence of property in a State may bear
on the existence of jurisdiction by providing contacts among the forum State, the defendant, and the
litigation. For example, when claims to the property itself are the source of the underlying
controversy between the plaintiff and the defendant, 24 it would be unusual for the State where the
property is located not to have jurisdiction. In such cases, the defendant's claim to property [433 U.S.
186, 208] located in the State would normally 25 indicate that he expected to benefit from the
State's protection of his interest. 26 The State's strong interests in assuring the marketability of
property within its borders 27 and in providing a procedure for peaceful resolution of disputes about
the possession of that property would also support jurisdiction, as would the likelihood that important
records and witnesses will be found in the State. 28 The presence of property may also favor
jurisdiction in cases, such as suits for injury suffered on the land of an absentee owner, where the
defendant's ownership of the property is conceded but the cause of action is otherwise related to
rights and duties growing out of that ownership. 29
It appears, therefore, that jurisdiction over many types of actions which now are or might be brought
in rem would not be affected by a holding that any assertion of state-court jurisdiction must satisfy
the International Shoe standard. 30 For the type of quasi in rem action typified by Harris v. Balk and
the present case, however, accepting the proposed analysis would result in significant change.
These are cases where [433 U.S. 186, 209] the property which now serves as the basis for statecourt jurisdiction is completely unrelated to the plaintiff's cause of action. Thus, although the
presence of the defendant's property in a State might suggest the existence of other ties among the
defendant, the State, and the litigation, the presence of the property alone would not support the
State's jurisdiction. If those other ties did not exist, cases over which the State is now thought to
have jurisdiction could not be brought in that forum.
Since acceptance of the International Shoe test would most affect this class of cases, we examine
the arguments against adopting that standard as they relate to this category of litigation. 31 Before
doing so, however, we note that this type of case also presents the clearest illustration of the
argument in favor of assessing assertions of jurisdiction by a single standard. For in cases such as
Harris and this one, the only role played by the property is to provide the basis for bringing the
defendant into court. 32 Indeed, the express purpose of the Delaware sequestration procedure is to
compel the defendant to enter a personal appearance. 33 In such cases, if a direct assertion of
personal jurisdiction over the defendant would violate the Constitution, it would seem that an indirect
assertion of that jurisdiction should be equally impermissible. [433 U.S. 186, 210]
The primary rationale for treating the presence of property as a sufficient basis for jurisdiction to
adjudicate claims over which the State would not have jurisdiction if International Shoe applied is
that a wrongdoer
"should not be able to avoid payment of his obligations by the expedient of removing his assets to a
place where he is not subject to an in personam suit." Restatement 66, Comment a.

Accord, Developments 955. This justification, however, does not explain why jurisdiction should be
recognized without regard to whether the property is present in the State because of an effort to
avoid the owner's obligations. Nor does it support jurisdiction to adjudicate the underlying claim. At
most, it suggests that a State in which property is located should have jurisdiction to attach that
property, by use of proper procedures, 34 as security for a judgment being sought in a forum where
the litigation can be maintained consistently with International Shoe. See, e. g., Von Mehren &
Trautman 1178; Hazard 284-285; Beale, supra, n. 18, at 123-124. Moreover, we know of nothing to
justify the assumption that a debtor can avoid paying his obligations by removing his property to a
State in which his creditor cannot obtain personal jurisdiction over him. 35 The Full Faith and Credit
Clause, after all, makes the valid in personam judgment of one State enforceable in all other
States. 36 [433 U.S. 186, 211]
It might also be suggested that allowing in rem jurisdiction avoids the uncertainty inherent in the
International Shoe standard and assures a plaintiff of a forum. 37 See Folk & Moyer, supra, n. 10, at
749, 767. We believe, however, that the fairness standard of International Shoe can be easily
applied in the vast majority of cases. Moreover, when the existence of jurisdiction in a particular
forum under International Shoe is unclear, the cost of simplifying the litigation by avoiding the
jurisdictional question may be the sacrifice of "fair play and substantial justice." That cost is too high.
We are left, then, to consider the significance of the long history of jurisdiction based solely on the
presence of property in a State. Although the theory that territorial power is both essential to and
sufficient for jurisdiction has been undermined, we have never held that the presence of property in a
State does not automatically confer jurisdiction over the owner's interest in that property. 38 This
history must be [433 U.S. 186, 212] considered as supporting the proposition that jurisdiction based
solely on the presence of property satisfies the demands of due process, cf. Ownbey v. Morgan, 256
U.S. 94, 111 (1921), but it is not decisive. "[T]raditional notions of fair play and substantial justice"
can be as readily offended by the perpetuation of ancient forms that are no longer justified as by the
adoption of new procedures that are inconsistent with the basic values of our constitutional heritage.
Cf. Sniadach v. Family Finance Corp., 395 U.S., at 340 ; Wolf v. Colorado, 338 U.S. 25, 27 (1949).
The fiction that an assertion of jurisdiction over property is anything but an assertion of jurisdiction
over the owner of the property supports an ancient form without substantial modern justification. Its
continued acceptance would serve only to allow state-court jurisdiction that is fundamentally unfair to
the defendant.
We therefore conclude that all assertions of state-court jurisdiction must be evaluated according to
the standards set forth in International Shoe and its progeny. 39 [433 U.S. 186, 213]
IV
The Delaware courts based their assertion of jurisdiction in this case solely on the statutory
presence of appellants' property in Delaware. Yet that property is not the subject matter of this
litigation, nor is the underlying cause of action related to the property. Appellants' holdings in

Greyhound do not, therefore, provide contacts with Delaware sufficient to support the jurisdiction of
that State's courts over appellants. If it exists, that jurisdiction must have some other foundation. 40
Appellee Heitner did not allege and does not now claim that appellants have ever set foot in
Delaware. Nor does he identify any act related to his cause of action as having taken place in
Delaware. Nevertheless, he contends that appellants' positions as directors and officers of a
corporation chartered in Delaware 41 provide sufficient "contacts, ties, or relations," International
Shoe Co. v. Washington, 326 U.S., at [433 U.S. 186, 214] 319, with that State to give its courts
jurisdiction over appellants in this stockholder's derivative action. This argument is based primarily
on what Heitner asserts to be the strong interest of Delaware in supervising the management of a
Delaware corporation. That interest is said to derive from the role of Delaware law in establishing the
corporation and defining the obligations owed to it by its officers and directors. In order to protect this
interest, appellee concludes, Delaware's courts must have jurisdiction over corporate fiduciaries
such as appellants.
This argument is undercut by the failure of the Delaware Legislature to assert the state interest
appellee finds so compelling. Delaware law bases jurisdiction, not on appellants' status as corporate
fiduciaries, but rather on the presence of their property in the State. Although the sequestration
procedure used here may be most frequently used in derivative suits against officers and directors,
Hughes Tool Co. v. Fawcett Publications, Inc., 290 A. 2d 693, 695 (Del. Ch. 1972), the authorizing
statute evinces no specific concern with such actions. Sequestration can be used in any suit against
a nonresident, 42 see, e. g., U.S. Industries, Inc. v. Gregg, 540 F.2d 142 (CA3 1976), cert. pending,
No. 76-359 (breach of contract); Hughes Tool Co. v. Fawcett Publications, Inc., supra (same), and
reaches corporate fiduciaries only if they happen to own interests in a Delaware corporation, or other
property in the State. But as Heitner's failure to secure jurisdiction over seven of the defendants
named in his complaint demonstrates, there is no necessary relationship between holding a position
as a corporate fiduciary and owning stock or other interests in the corporation. 43 If Delaware
perceived its interest in securing jurisdiction over corporate fiduciaries [433 U.S. 186, 215] to be as
great as Heitner suggests, we would expect it to have enacted a statute more clearly designed to
protect that interest.
Moreover, even if Heitner's assessment of the importance of Delaware's interest is accepted, his
argument fails to demonstrate that Delaware is a fair forum for this litigation. The interest appellee
has identified may support the application of Delaware law to resolve any controversy over
appellants' actions in their capacities as officers and directors. 44 But we have rejected the argument
that if a State's law can properly be applied to a dispute, its courts necessarily have jurisdiction over
the parties to that dispute.
"[The State] does not acquire . . . jurisdiction by being the `center of gravity' of the controversy, or the
most convenient location for litigation. The issue is personal jurisdiction, not choice of law. It is
resolved in this case by considering the acts of the [appellants]." Hanson v. Denckla, 357 U.S. 235,
254 (1958). 45

Appellee suggests that by accepting positions as officers or directors of a Delaware corporation,

appellants performed the acts required by Hanson v. Denckla. He notes that Delaware law provides
substantial benefits to corporate officers and directors, 46 and that these benefits were at least in
part [433 U.S. 186, 216] the incentive for appellants to assume their positions. It is, he says, "only
fair and just" to require appellants, in return for these benefits, to respond in the State of Delaware
when they are accused of misusing their power. Brief for Appellee 15.
But like Heitner's first argument, this line of reasoning establishes only that it is appropriate for
Delaware law to govern the obligations of appellants to Greyhound and its stockholders. It does not
demonstrate that appellants have "purposefully avail[ed themselves] of the privilege of conducting
activities within the forum State," Hanson v. Denckla, supra, at 253, in a way that would justify
bringing them before a Delaware tribunal. Appellants have simply had nothing to do with the State of
Delaware. Moreover, appellants had no reason to expect to be haled before a Delaware court.
Delaware, unlike some States, 47 has not enacted a statute that treats acceptance of a directorship
as consent to jurisdiction in the State. And "[i]t strains reason . . . to suggest that anyone buying
securities in a corporation formed in Delaware `impliedly consents' to subject himself to
Delaware's . . . jurisdiction on any cause of action." Folk & Moyer, supra, n. 10, at 785. Appellants,
who were not required to acquire interests in Greyhound in order to hold their positions, did not by
acquiring those interests surrender their right to be brought to judgment only in States with which
they had had "minimum contacts."
The Due Process Clause
"does not contemplate that a state may make binding a judgment . . . against an individual or
corporate defendant with which the state has no contacts, ties, or relations." International Shoe Co.
v. Washington, 326 U.S., at 319 .
Delaware's assertion of jurisdiction over appellants in this case is inconsistent with that constitutional
limitation on [433 U.S. 186, 217] state power. The judgment of the Delaware Supreme Court must,
therefore, be reversed.
It is so ordered.
MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.

G.R. No. L-48652

September 16, 1942

LUCIA BERNABE, ET AL., plaintiffs-appellees,

vs.
DOMINGO L. VERGARA, defendant-appellant.
Dantis, Rivera & Vergara for appellant.
Harmogenes Concepcion for appellees.
MORAN, J.:
This case has been certified to this Court by a resolution of the Court of Appeals which reads as
follows:
En la demanda entablada en este asunto se pide la anulacion de la subasta publica que
realizo el sheriff de Nueva Ecija para dar cumplimiento a una parte de la sentencia dictada
por el Juzgado de Primera Instancia de aquella provincia en el asunto civil No. 5714, parte
relativa al pago de la cantidad de P350 con sus intereses legales desde el 22 de febrero de
1917, montando todo ello a la suma de P747 por la que se remataron los bienes
embargados y vendidos. Despues de enjuciar el presente pleito, el Juzgado dicto sentencia
anulando la subasta, conforme a lo pelido en la demanda, por causa de varias
irregularidades cometidas por el sheriff en la tramitacion de las diligencia concernientes a
dicha subasta. Contra el fallo asi dictado, la parte demandada, es decir, la parte a quien
beneficio la subasta, ha interpuesto la presente apelacion.
Al revisar los autos de este asunto hemos notado que los demandantes y apelados, al arguir
a favor de la sentencia del Tribunal inferior, no solamente invocan las irregularidades de la
subasta, sino que suscitan una cuestion de jurisdiccion o comptencia, la del Juzgado que
dicto la sentencia en el pleito anterior, o sea, el referido asunto civil No. 5714. Segun los
apelados, en aquel asunto la unica cuestion planteada era la particion de ciertos bienes
inmuebles, la parte demandada entonces, que lo es tambien en este asunto, no reclamaba
ninguna cantidad de dinero en su escrito de alegaciones. Sin embargo, el Juzgado, al dictar
su sentencia, condeno a los demandantes a pagar a los demandados la cantidad de P350,
mas los intereses legales. Al hacer esto sostienen los apelados el Juzgado obro sin
jurisdiccion ni competencia (alegato de los apelados, pags. 22 y siguientes). Y esta cuestion
de jurisdiccion aaden puede suscitarse en cualquier estado del juicio, sea en este o
en el primer asunto.
Por lo expuestos y en obediencia a la ley que rige nuestras actuaciones, ordenamos que
este expediente se eleve al Tribunal Supremo por ser de su incumbencia el enjuiciarlo y
resolverlo.
Civil case No. 5714, as we have examined it, was an action for partition of an inheritance left by the
deceased Victoriano Zafra. He was survived by three children: Benito Apolonia and Dominga, all
surnamed Zafra. Benito and Apolonia died, the first leaving a daughter named Irinea, and the
second, three children named Lucia, Hipolito, and Barbara. The plaintiff in the action for partition
were the heirs of Benito and Apolonia Zafra and the defendants were Dominga Zafra and the
persons to whom she sad sold her share in the common property; namely, Brigida Martinez, Amadeo
Landicho and Marcelina Landicho. Dominga Zafra, in her answer, pleaded a counterclaim, alleging
that she had paid certain debts contracted by Apolonia Zafra, the deceased mother of plaintiffs
Lucia, Hipolito, and Barbara. These debts constituted an equitable lien upon the property left by said
deceased Apolonia Zafra. (Suiliong & co. vs. Chio-Taysan, 12 Phil., 13; Lopez vs. Enriquez , 16 Phil.,

336; Montinola vs. Villanueva, 49 Phil., 528.) At the trial, evidence was presented as to such debts,
and the trial court in its decision awarded the plaintiffs Lucia, Hipolito, and Barbara one-third of the
common property and, at the same time, ordered them to pay the debts of their deceased mother,
Apolonia Zafra, in the amount of P350. Appeal was interposed by them from this judgment, and in
this Court no question was raised as to the jurisdiction of the trial court to render a judgment in the
said amount of P350. This Court accordingly assumed jurisdiction over the case and affirmed the
judgment.
The question now raised by the plaintiffs-appellees as to whether or not the trial court had
jurisdiction to render its judgment for the sum of money above mentioned is unsubstantial. There can
be absolutely no doubt that the trial had such jurisdiction not only because there was a counterclaim
wherein the amount adjudged was within the amount pleaded, but because the proceeding was in
the nature of one for liquidation and partition of inheritance wherein debts left by the deceased
ancestors may be determined and ordered paid if the creditors are parties, as was the case.
Plaintiffs-appellees knew that the trial court had such jurisdiction as is shown by their omission to
raise any question with respect thereto in their appeal to this Court. And such question may be
deemed to have been passed upon impliedly by this Court when it acted on the case and decided
the same on the merits.
And, furthermore, the question of jurisdiction attempted to be raised in this case is not the kind of
question that confers jurisdiction upon this Court. The jurisdiction involved is not one over the subject
matter but at most over the issue or over the persons of the parties. A Court of First Instance has
jurisdiction over the case involving P200 or more, and therefore the Court of First Instance of Nueva
Ecija had jurisdiction to render judgment in the amount of P350. The question of whether or not there
was a proper issue raised in the pleading as to said amount, is not a question of jurisdiction over the
subject-matter, but jurisdiction over the issue. In this regard we reiterate what we have said in Reyes
vs. Diaz, G.R. No. 48754, November 26, 1941:
There is in our Constitution or in the law aforecited nothing which may lend the word
"jurisdiction" therein used a broader meaning than jurisdiction over the subject-matter. On the
contrary, having due regard to the manifest purpose of the law, which is to confine the
appellate jurisdiction of this Court to cases of vital importance involving questions of
fundamental character, such, for instance, as the question validity of statute, treaty or
ordinance, or the legality of any tax, import or assessment which may affect the very
existence of the government, or criminal cases wherein life imprisonment or death penalty is
imposed, we are of the opinion and so hold., that the issue of jurisdiction which confers
appellate powers upon this Court in a given case is not such question as is dependent
exclusively upon minor matters of fact or upon a mere construction of the pleadings, but that
which has reference to the more important question of jurisdiction of the trial court over the
subject-matter as determined by law.
Jurisdiction over the subject-matter is the power to hear and determine cases of the general
class to which the proceedings in question belong (C. J. S. p. 36) and is conferred by the
sovereign authority which organizes the court and defines the court and defines its powers
(Banco Espaol Filipino vs. Palanca, 37 Phil., 921; Perkins vs. Dizon, 40 Off Gaz., No. 7, 3rd
Sup., p., 216; Ng Si Chok vs. Vera, G. R. No. 45674). The question, therefore of whether a
court has jurisdiction over the subject-matter, calls for interpretation and application of the
law of jurisdiction which distributes the judicial power among the different courts in the
Philippines and since the ruling on the matter is of far-reaching consequences, affecting, as it
may, the very life and structure of our judicial system, the law has deemed it wise to place
the power and authority to act thereon in the highest court of the land.

xxx

xxx

xxx

... Whether certain ballots are or are not pertinent to the issue raised in the pleadings, is
merely a question of relevancy of evidence. It may be true that the court by an erroneous
ruling on such question may enrcroach upon issues completely foreign to those defined in
the pleadings, but in such case the question of jurisdiction that may arise would not be one
of jurisdiction over the subject-matter but of jurisdiction over the issue. In order that a court
may validly try and decide a case, it must have jurisdiction over the subject-matter and
jurisdiction over the persons of the parties (Banco Espaol Filipino vs. Palanca, 37 Phil., 921;
Perkins vs. Dizon, 40 Off. Gaz., No. 7, 3d Sup., p., 216.) But in some instances it is said that
the court should also have jurisdiction over the issue (15 C. J., 734; Hutts vs. Martin, 134
Ind., 587; 33 N. E., 676), meaning thereby that the issue being tried and decided by the court
be within the issues raised in the pleadings. But this kind of jurisdiction should be
distinguished from jurisdiction over the subject matter, the latter being conferred by law and
the former by the pleadings. Jurisdiction over the issue, unlike jurisdiction over the subjectmatter, may be conferred by consent either express or implied of the parties. (Rule 17, sec.
4, Rules of Court.) Although an issue is not duly pleaded it may validly be tried and decided if
no timely objection is made thereto by the parties. This cannot be done when jurisdiction
over the subject-matter is involved. In truth, jurisdiction over the issue is an expression of a
principle that is involved in jurisdiction over the persons of the parties. Where, for instance,
an issue is not duly pleaded in the complaint, the defendant cannot be said to have been
served with process as to that issue. (Cf. Atkins, Kroll & Co. vs.Domingo, 44 Phil., 680.) At
any rate, whether or not the court has jurisdiction over a specific issue is a question that
requires nothing except an examination of the pleadings, and this function is without such
importance as to call for the intervention of this court.
We hold therefore, that the question of jurisdiction raised in the instant case is not only unsubstantial
but is also not the kind of question that may deprive the Court of Appeals of its appellate jurisdiction
over the case. It is hereby ordered that this case be returned to the Court of Appeals for hearing and
decision on the merits.
Yulo, C.J., Ozaeta, Bocobo and Generoso, JJ., concur.

G.R. No. 93262 December 29, 1991

DAVAO LIGHT & POWER CO., INC., petitioner,
vs.
THE COURT OF APPEALS, QUEENSLAND HOTEL or MOTEL or QUEENSLAND TOURIST INN,
and TEODORICO ADARNA, respondents.
Breva & Breva Law Offices for petitioner.
Goc-Ong & Associates for private respondents.

NARVASA, J.:p
Subject of the appellate proceedings at bar is the decision of the Court of Appeals in CA-G.R. Sp.
No. 1967 entitled "Queensland Hotel, Inc., etc. and Adarna v. Davao Light & Power Co., Inc.,"
promulgated on May 4, 1990.1 That decision nullified and set aside the writ of preliminary attachment
issued by the Regional Trial Court of Davao City 2 in Civil Case No. 19513-89 on application of the
plaintiff (Davao Light & Power Co.), before the service of summons on the defendants (herein
respondents Queensland Co., Inc. and Adarna).
Following is the chronology of the undisputed material facts culled from the Appellate Tribunal's
judgment of May 4, 1990.
1. On May 2, 1989 Davao Light & Power Co., Inc. (hereafter, simply Davao Light) filed a verified
complaint for recovery of a sum of money and damages against Queensland Hotel, etc. and
Teodorico Adarna (docketed as Civil Case No. 19513-89). The complaint contained an ex
parte application for a writ of preliminary attachment.
2. On May 3, 1989 Judge Nartatez, to whose branch the case was assigned by raffle, issued an
Order granting the ex parte application and fixing the attachment bond at P4,600,513.37.
3. On May 11, 1989 the attachment bond having been submitted by Davao Light, the writ of
attachment issued.
4. On May 12, 1989, the summons and a copy of the complaint, as well as the writ of attachment
and a copy of the attachment bond, were served on defendants Queensland and Adarna; and
pursuant to the writ, the sheriff seized properties belonging to the latter.
5. On September 6, 1989, defendants Queensland and Adarna filed a motion to discharge the
attachment for lack of jurisdiction to issue the same because at the time the order of attachment was
promulgated (May 3, 1989) and the attachment writ issued (May 11, 1989), the Trial Court had not
yet acquired jurisdiction over the cause and over the persons of the defendants.
6. On September 14, 1989, Davao Light filed an opposition to the motion to discharge attachment.
7. On September 19, 1989, the Trial Court issued an Order denying the motion to discharge.
This Order of September 19, 1989 was successfully challenged by Queensland and Adarna in a
special civil action of certiorari instituted by them in the Court of Appeals. The Order was, as

aforestated, annulled by the Court of Appeals in its Decision of May 4, 1990. The Appellate Court's
decision closed with the following disposition:
. . . the Orders dated May 3, 1989 granting the issuance of a writ of preliminary
attachment, dated September 19, 1989 denying the motion to discharge attachment;
dated November 7, 1989 denying petitioner's motion for reconsideration; as well as
all other orders emanating therefrom, specially the Writ of Attachment dated May 11,
1989 and Notice of Levy on Preliminary Attachment dated May 11, 1989, are hereby
declared null and void and the attachment hereby ordered DISCHARGED.
The Appellate Tribunal declared that
. . . While it is true that a prayer for the issuance of a writ of preliminary attachment
may be included m the complaint, as is usually done, it is likewise true that the Court
does not acquire jurisdiction over the person of the defendant until he is duly
summoned or voluntarily appears, and adding the phrase that it be issued "ex parte"
does not confer said jurisdiction before actual summons had been made, nor retroact
jurisdiction upon summons being made. . . .
It went on to say, citing Sievert v. Court of Appeals, 3 that "in a proceedings in attachment," the
"critical time which must be identified is . . . when the trial court acquires authority under law to act
coercively against the defendant or his property . . .;" and that "the critical time is the of the
vesting of jurisdiction in the court over the person of the defendant in the main case."
Reversal of this Decision of the Court of Appeals of May 4, 1990 is what Davao Light seeks in the
present appellate proceedings.
The question is whether or not a writ of preliminary attachment may issue ex parte against a
defendant before acquisition of jurisdiction of the latter's person by service of summons or his
voluntary submission to the Court's authority.
The Court rules that the question must be answered in the affirmative and that consequently, the
petition for review will have to be granted.
It is incorrect to theorize that after an action or proceeding has been commenced and jurisdiction
over the person of the plaintiff has been vested in the court, but before the acquisition of jurisdiction
over the person of the defendant (either by service of summons or his voluntary submission to the
court's authority), nothing can be validly done by the plaintiff or the court. It is wrong to assume that
the validity of acts done during this period should be defendant on, or held in suspension until, the
actual obtention of jurisdiction over the defendant's person. The obtention by the court of jurisdiction
over the person of the defendant is one thing; quite another is the acquisition of jurisdiction over the
person of the plaintiff or over the subject-matter or nature of the action, or the res or object hereof.
An action or proceeding is commenced by the filing of the complaint or other initiatory pleading. 4 By
that act, the jurisdiction of the court over the subject matter or nature of the action or proceeding is
invoked or called into activity; 5 and it is thus that the court acquires jurisdiction over said subject matter
or nature of the action. 6 And it is by that self-same act of the plaintiff (or petitioner) of filing the complaint
(or other appropriate pleading) by which he signifies his submission to the court's power and authority
that jurisdiction is acquired by the court over his person. 7On the other hand, jurisdiction over the
person of the defendant is obtained, as above stated, by the service of summons or other coercive
process upon him or by his voluntary submission to the authority of the court. 8

The events that follow the filing of the complaint as a matter of routine are well known. After the
complaint is filed, summons issues to the defendant, the summons is then transmitted to the sheriff,
and finally, service of the summons is effected on the defendant in any of the ways authorized by the
Rules of Court. There is thus ordinarily some appreciable interval of time between the day of the
filing of the complaint and the day of service of summons of the defendant. During this period,
different acts may be done by the plaintiff or by the Court, which are unquestionable validity and
propriety. Among these, for example, are the appointment of a guardian ad litem,9 the grant of
authority to the plaintiff to prosecute the suit as a pauper litigant, 10 the amendment of the complaint by
the plaintiff as a matter of right without leave of court, 11 authorization by the Court of service of summons
by publication, 12 the dismissal of the action by the plaintiff on mere notice. 13
This, too, is true with regard to the provisional remedies of preliminary attachment, preliminary
injunction, receivership or replevin. 14 They may be validly and properly applied for and granted even
before the defendant is summoned or is heard from.
A preliminary attachment may be defined, paraphrasing the Rules of Court, as the provisional
remedy in virtue of which a plaintiff or other party may, at the commencement of the action or at any
time thereafter, have the property of the adverse party taken into the custody of the court as security
for the satisfaction of any judgment that may be recovered. 15 It is a remedy which is purely statutory in
respect of which the law requires a strict construction of the provisions granting it. 16 Withal no principle,
statutory or jurisprudential, prohibits its issuance by any court before acquisition of jurisdiction over the
person of the defendant.
Rule 57 in fact speaks of the grant of the remedy "at the commencement of the action or at any time
thereafter."17 The phase, "at the commencement of the action," obviously refers to the date of the filing of
the complaint which, as above pointed out, is the date that marks "the commencement of the
action;" 18 and the reference plainly is to a time before summons is served on the defendant, or even
before summons issues. What the rule is saying quite clearly is that after an action is properly
commenced by the filing of the complaint and the payment of all requisite docket and other fees the
plaintiff may apply for and obtain a writ of preliminary attachment upon fulfillment of the pertinent
requisites laid down by law, and that he may do so at any time, either before or after service of summons
on the defendant. And this indeed, has been the immemorial practice sanctioned by the courts: for the
plaintiff or other proper party to incorporate the application for attachment in the complaint or other
appropriate pleading (counter-claim, cross-claim, third-party claim) and for the Trial Court to issue the
writ ex-parte at the commencement of the action if it finds the application otherwise sufficient in form and
substance.
In Toledo v. Burgos, 19 this Court ruled that a hearing on a motion or application for preliminary
attachment is not generally necessary unless otherwise directed by the Trial Court in its
discretion. 20 And in Filinvest Credit Corporation v. Relova, 21 the Court declared that "(n)othing in the
Rules of Court makes notice and hearing indispensable and mandatory requisites for the issuance of a
writ of attachment." The only pre-requisite is that the Court be satisfied, upon consideration of "the
affidavit of the applicant or of some other person who personally knows the facts, that a sufficient cause of
action exists, that the case is one of those mentioned in Section 1 . . . (Rule 57), that there is no other
sufficient security for the claim sought to be enforced by the action, and that the amount due to the
applicant, or the value of the property the possession of which he is entitled to recover, is as much as the
sum for which the order (of attachment) is granted above all legal counterclaims." 22 If the court be so
satisfied, the "order of attachment shall be granted," 23 and the writ shall issue upon the applicant's
posting of "a bond executed to the adverse party in an amount to be fixed by the judge, not exceeding the
plaintiffs claim, conditioned that the latter will pay all the costs which may be adjudged to the adverse
party and all damages which he may sustain by reason of the attachment, if the court shall finally adjudge
that the applicant was not entitled thereto." 24

In Mindanao Savings & Loan Association, Inc. v. Court of Appeals, decided on April 18, 1989, 25 this
Court had occasion to emphasize the postulate that no hearing is required on an application for
preliminary attachment, with notice to the defendant, for the reason that this "would defeat the objective of
the remedy . . . (since the) time which such a hearing would take, could be enough to enable the
defendant to abscond or dispose of his property before a writ of attachment issues." As observed by a
former member of this Court, 26 such a procedure would warn absconding debtors-defendants of the
commencement of the suit against them and the probable seizure of their properties, and thus give them
the advantage of time to hide their assets, leaving the creditor-plaintiff holding the proverbial empty bag; it
would place the creditor-applicant in danger of losing any security for a favorable judgment and thus give
him only an illusory victory.

Withal, ample modes of recourse against a preliminary attachment are secured by law to the
defendant. The relative ease with which a preliminary attachment may be obtained is matched and
paralleled by the relative facility with which the attachment may legitimately be prevented or
frustrated. These modes of recourse against preliminary attachments granted by Rule 57 were
discussed at some length by the separate opinion in Mindanao Savings & Loans
Asso. Inc. v. CA., supra.
That separate opinion stressed that there are two (2) ways of discharging an attachment: first, by the
posting of a counterbond; and second, by a showing of its improper or irregular issuance.
1.0. The submission of a counterbond is an efficacious mode of lifting an attachment already
enforced against property, or even of preventing its enforcement altogether.
1.1. When property has already been seized under attachment, the attachment may be discharged
upon counterbond in accordance with Section 12 of Rule 57.
Sec. 12. Discharge of attachment upon giving counterbond. At any time after an
order of attachment has been granted, the party whose property has been attached
or the person appearing in his behalf, may, upon reasonable notice to the applicant,
apply to the judge who granted the order, or to the judge of the court in which the
action is pending, for an order discharging the attachment wholly or in part on the
security given . . . in an amount equal to the value of the property attached as
determined by the judge to secure the payment of any judgment that the attaching
creditor may recover in the action. . . .
1.2. But even before actual levy on property, seizure under attachment may be prevented also upon
counterbond. The defendant need not wait until his property is seized before seeking the discharge
of the attachment by a counterbond. This is made possible by Section 5 of Rule 57.
Sec. 5. Manner of attaching property. The officer executing the order shall without
delay attach, to await judgment and execution in the action, all the properties of the
party against whom the order is issued in the province, not exempt from execution, or
so much thereof as may be sufficient to satisfy the applicant's demand, unless the
former makes a deposit with the clerk or judge of the court from which the order
issued, or gives a counter-bond executed to the applicant, in an amount sufficient to
satisfy such demand besides costs, or in an amount equal to the value of the
property which is about to be attached, to secure payment to the applicant of any
judgment which he may recover in the action. . . . (Emphasis supplied)
2.0. Aside from the filing of a counterbond, a preliminary attachment may also be lifted or discharged
on the ground that it has been irregularly or improperly issued, in accordance with Section 13 of Rule

57. Like the first, this second mode of lifting an attachment may be resorted to even before any
property has been levied on. Indeed, it may be availed of after property has been released from a
levy on attachment, as is made clear by said Section 13, viz.:
Sec. 13. Discharge of attachment for improper or irregular issuance. The party
whose property has been attached may also, at any time either BEFORE or AFTER
the release of the attached property, or before any attachment shall have been
actually levied, upon reasonable notice to the attaching creditor, apply to the judge
who granted the order, or to the judge of the court in which the action is pending, for
an order to discharge the attachment on the ground that the same was improperly or
irregularly issued. If the motion be made on affidavits on the part of the party whose
property has been attached, but not otherwise, the attaching creditor may oppose the
same by counter-affidavits or other evidence in addition to that on which the
attachment was made. . . . (Emphasis supplied)
This is so because "(a)s pointed out in Calderon v. I.A.C., 155 SCRA 531 (1987), The attachment
debtor cannot be deemed to have waived any defect in the issuance of the attachment writ by simply
availing himself of one way of discharging the attachment writ, instead of the other. Moreover, the
filing of a counterbond is a speedier way of discharging the attachment writ maliciously sought out by
the attaching creditor instead of the other way, which, in most instances . . . would require
presentation of evidence in a fullblown trial on the merits, and cannot easily be settled in a pending
incident of the case." 27
It may not be amiss to here reiterate other related principles dealt with in Mindanao Savings & Loans
Asso. Inc. v.C.A., supra., 28 to wit:
(a) When an attachment may not be dissolved by a showing of its irregular or
improper issuance:
. . . (W)hen the preliminary attachment is issued upon a ground which is at the same
time the applicant's cause of action; e.g., "an action for money or property embezzled
or fraudulently misapplied or converted to his own use by a public officer, or an
officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of
his employment as such, or by any other person in a fiduciary capacity, or for a willful
violation of duty." (Sec. 1 [b], Rule 57), or "an action against a party who has been
guilty of fraud m contracting the debt or incurring the obligation upon which the action
is brought" (Sec. 1 [d], Rule 57), the defendant is not allowed to file a motion to
dissolve the attachment under Section 13 of Rule 57 by offering to show the falsity of
the factual averments in the plaintiff's application and affidavits on which the writ was
based and consequently that the writ based thereon had been improperly or
irregularly issued (SEE Benitez v. I.A.C., 154 SCRA 41) the reason being that the
hearing on such a motion for dissolution of the writ would be tantamount to a trial of
the merits of the action. In other words, the merits of the action would be ventilated at
a mere hearing of a motion, instead of at the regular trial. Therefore, when the writ of
attachment is of this nature, the only way it can be dissolved is by a counterbond
(G.B. Inc. v. Sanchez, 98 Phil. 886).
(b) Effect of the dissolution of a preliminary attachment on the plaintiffs attachment bond:
. . . The dissolution of the preliminary attachment upon security given, or a showing
of its irregular or improper issuance, does not of course operate to discharge the
sureties on plaintiff's own attachment bond. The reason is simple. That bond is

"executed to the adverse party, . . . conditioned that the . . . (applicant) will pay all the
costs which may be adjudged to the adverse party and all damages which he may
sustain by reason of the attachment, if the court shall finally adjudge that the
applicant was not entitled thereto" (SEC. 4, Rule 57). Hence, until that determination
is made, as to the applicant's entitlement to the attachment, his bond must stand and
cannot be with-drawn.
With respect to the other provisional remedies, i.e., preliminary injunction (Rule 58), receivership
(Rule 59), replevin or delivery of personal property (Rule 60), the rule is the same: they may also
issue ex parte. 29
It goes without saying that whatever be the acts done by the Court prior to the acquisition of
jurisdiction over the person of defendant, as above indicated issuance of summons, order of
attachment and writ of attachment (and/or appointments of guardian ad litem, or grant of authority to
the plaintiff to prosecute the suit as a pauper litigant, or amendment of the complaint by the plaintiff
as a matter of right without leave of court 30 and however valid and proper they might otherwise be,
these do not and cannot bind and affect the defendant until and unless jurisdiction over his person is
eventually obtained by the court, either by service on him of summons or other coercive process or his
voluntary submission to the court's authority. Hence, when the sheriff or other proper officer commences
implementation of the writ of attachment, it is essential that he serve on the defendant not only a copy of
the applicant's affidavit and attachment bond, and of the order of attachment, as explicity required by
Section 5 of Rule 57, but also the summons addressed to said defendant as well as a copy of the
complaint and order for appointment of guardian ad litem, if any, as also explicity directed by Section 3,
Rule 14 of the Rules of Court. Service of all such documents is indispensable not only for the acquisition
of jurisdiction over the person of the defendant, but also upon considerations of fairness, to apprise the
defendant of the complaint against him, of the issuance of a writ of preliminary attachment and the
grounds therefor and thus accord him the opportunity to prevent attachment of his property by the posting
of a counterbond in an amount equal to the plaintiff's claim in the complaint pursuant to Section 5 (or
Section 12), Rule 57, or dissolving it by causing dismissal of the complaint itself on any of the grounds set
forth in Rule 16, or demonstrating the insufficiency of the applicant's affidavit or bond in accordance with
Section 13, Rule 57.
It was on account of the failure to comply with this fundamental requirement of service of summons
and the other documents above indicated that writs of attachment issued by the Trial Court ex
parte were struck down by this Court's Third Division in two (2) cases, namely: Sievert v. Court of
Appeals, 31 and BAC Manufacturing and Sales Corporation v. Court of Appeals, et al. 32 In contrast to
the case at bar where the summons and a copy of the complaint, as well as the order and writ of
attachment and the attachment bond were served on the defendant in Sievert, levy on attachment was
attempted notwithstanding that only the petition for issuance of the writ of preliminary attachment was
served on the defendant, without any prior or accompanying summons and copy of the complaint; and
in BAC Manufacturing and Sales Corporation, neither the summons nor the order granting the preliminary
attachment or the writ of attachment itself was served on the defendant "before or at the time the levy was made."

For the guidance of all concerned, the Court reiterates and reaffirms the proposition that writs of
attachment may properly issue ex parte provided that the Court is satisfied that the relevant
requisites therefor have been fulfilled by the applicant, although it may, in its discretion, require prior
hearing on the application with notice to the defendant; but that levy on property pursuant to the writ
thus issued may not be validly effected unless preceded, or contemporaneously accompanied, by
service on the defendant of summons, a copy of the complaint (and of the appointment of
guardian ad litem, if any), the application for attachment (if not incorporated in but submitted
separately from the complaint), the order of attachment, and the plaintiff's attachment bond.

WHEREFORE, the petition is GRANTED; the challenged decision of the Court of Appeals is hereby
REVERSED, and the order and writ of attachment issued by Hon. Milagros C. Nartatez, Presiding
Judge of Branch 8, Regional Trial Court of Davao City in Civil Case No. 19513-89 against
Queensland Hotel or Motel or Queensland Tourist Inn and Teodorico Adarna are hereby
REINSTATED. Costs against private respondents.
SO ORDERED.