The Pacific commercial advertiser., 1900-12-20
DECREE IS
REVERSED
Decision Of Supreme
Court.
FIRST OF PRESENT TERN,
The Case Of MaIani Against Alapai
Remanded to the Fourth
Circuit.

against G. N. Alapai and Mrs. G. N.
Alapai, an appeal from the Circuit
Court. and the first case decided at the
present term of the Supreme Court:
This is a bill to have a deed, abso-
lutte in form, declared a mortgage and
ior an accounting and foreclosure. The
suit was brought in the Fourth Cir
cuit; the land was situated and the
defendants were served In the Third
Circuit. The defendants demurred on
the ground that the court had no jur-
.sdiction over uhe persons of the de-
| PENDANTS or the subject matter. The
Circnit judge held that he had juIisdic-
ton OF the persons Of the defendants
inasmuch as they had appeared gen
| crafty. We may add that service In
the Third Circuit of profess issued in
the Fourth Circuit was proper under
section 1851 of the Civil Laws. The
Judge held further that proceeding
to foreclose a mortgage was in the
nature Of a proceeding in rem, and
therefore of local nature and that
it could be brought only in the circuit
In which the land was situated, and
| that therefore he was without jurisdic
ton of the subject matter of the suit,
and SO sustained the demurrer and dis
missed the bill. The plaintiffs ap-
pealed.
Several contentious are made in sup.
port of the jurisdiction. One Is that
the main object OF the bill is to have
the deed declared a mortgage and that
| this certainly Is not local in its ma
ture, Another Is that even suit to
foreclose a mortgage is of transitory
pature;,s that equity acts against the
person only, and hence such a suit in
equity must be In personam and not
in rem. Such undoubtedly Is the view
| in England (Paget VS.. EIDE, J.. r. IS,
Eq. 11&l and the view taken in some
Of thssearlier American cases (E. g..
BrOoHe. VS.. Beers, s Conn.,, 1887. See
Millefsxs. Dows, "a U. S., A. But 1t
has been changed by statute in many
Of the States. In some States the stat
utes permit the suit to be brought
either-il the county Of the mortg agor's S
residence or in that in which the land
is situated; in other States the stat
utes permit the suit to be brought IN
any county, but require it to be tried
in the county in which the land is
situated IL the defendant sd demands;
out in a larger number OF States the
.
zion, and require the suit to be brought
IN the county in which the land o.
some part of it Is situated. See Enc.
Pl. and Pr. 249 ct seq. No doubt the
tendency is to regard the action as IL
effect in rem though pc: sonal in form.
! Among the reasons that have been
given for holding it transitory are tina,
| The mortgagor's equity OF redemption
Is not an estate strictly speaking, but
lonly right, and that the title to the
land cannot be litigated in foreclos-
ure suit Among the reasons given lor
| holding 1t local are that now in mos.
OF the States the theory of a mortgag
has changed, the mortgage being re
garded mercy as creating a lien, leav
ing the title in the mortgagor, tha
the court on foreclosure deals drectiy
with the res, especially uader tn
methods of foreclosure now genera l.
In vogue in the States, and that it.
process Is not effective outside of it
jurisdiction How far change in tn,
2 theoly OF mortgages should weigh il
the aDSence Oh statut. Limiting jtlris
dlctlon In cases OF this Kind, we need
not attempt to say. Just what tn
tneoly OF NOR, cages Is here has never
That We are aware of, been judiciaIiy
determined. In our. opinion our TIA :
uteS permit a suit to be brought IL
one circuit for the foreclosure of d
MortgaSe of land situated Ia anoJhe,
circuit. This is piaintiff's third con-
tention.
section 1144 of the Civil Laws emu
merates the classes or cases that may
be tried in the circuit courts. Sectio, !,
LAO enumerates the classes OF case
that may be heard by Circuit Judges
III Chambers. Among those are .'aI.
matters In equity" Section 1146 pre-
series the limitations as to te ri .orial
jurisdiction. For instance, form rly
proceedings for partition could be
Drouehl only in the circuit in which
the land was situated, or in the t'irs;
circuit, aid now Dy amendment (ACt
o6, Laws OF 1899, only IN the circuit
In which the land is situated. unless
II hes In more than one circuit in
whlch case the proceedings may be
prouSnt In any circuit III which tn s.
land is in part situated Formerly
there was no limitation in this respect
as TO actions of ejeetment IN the CIR
cult courts. Now, under said amenda
tory act they may be b1oughc only II,
the circuit in which the land is si.ua-
ted. There is no limitation whatever
prescribed as to foreclosure suits. Sec
tion 1150 confers upon the cigcult
courts and section ISL upon the cir
cult judges power to compel the at
tendance of parties and witne. .ses from
any part OF the Territory, and TO issue
all such executions ard other processe:
ana do all such other acts as NAV be
necessary to carry into full effect all
the1r powers, or as may be necessary
LOT the promotion of justice. In Wal.
lnku Sugar Company VS.. Cornwell 1C
HaW., 416, 1t was held that a suit Ia
equity was properly brought in tb-
flrst Circuit for an Injunction against
uniawfuliy diyerting and using wata,
In the Second Circuit. In Dairy VS.
Kane. 15S Mass, 376, the statute pro.
vided generally that suits in equity
might be brought in any county where
transitory personal action between
the same parties might be brought
The court held that a bill to red sem a
mortgage came within such provision