(39 Kan. 452)

TOOTLE et al. v. WELLS.

(Supreme Court of Kansas. June 9, 1888.)

1. ACTION-FOR BALANCE DUE ON ACCOUNT-SINGLE CAUSE OF ACTION. A balance due on an account constitutes only one cause of action.

2. INTEREST-ON BALANCE DUE ON ACCOUNT-WHEN RECOVERable.

Interest may be recovered on a balance due on an account, and especially so where the parties have agreed that interest should be paid on such balance. (Syllabus by the Court.)

Error to district court, Neosho county; L. STILLWELL, Judge. This was an action brought by Tootle, Hosea & Co., before a justice of the peace of Neosho county, against John Wells, to recover $129.20, alleged to be due as interest on an account. The plaintiffs' amended bill of particulars, omitting title and signature, reads as follows: "Said plaintiffs say: (1) That they are now, and have been for more than three years last past, partners, doing business under the firm name of Tootle, Hosea & Co. (2) That said defendant, John Wells, at various times between the 1st day of July, 1883, and the 1st day of April, 1884, bought various bills of goods, wares, and merchandise from said plaintiffs, and between the 1st day of November, 1883, and the 15th day of September, 1885, made various payments on same, a full and detailed statement of said purchases and payments being hereto annexed, marked Exhibit A,' and made a part hereof. (3) That it was agreed and understood between said plaintiffs and said defendant at the time of the receipt by said defendant of the invoices of each of said bills of goods, and the bills rendered therefor by said plaintiffs before the maturity of each of said bills of goods, that the amount of each of said bills of goods remaining due and unpaid at the maturity thereof would draw interest from that date at the rate of 10 per cent. per annum. (4) That the total amount of said interest, as above specified, from the maturity of each of said bills of goods to the 14th day of September, 1885, upon the balances remaining unpaid at the various times set out in said Exhibit A, is $129.20. (5) That said defendant is indebted to said plaintiff in said sum of $129.20, for interest as aforesaid, which said defendant has refused and still refuses to pay, though often requested so to do. Wherefore said plaintiffs ask judgment against said defendant for said sum of $129.20, with 10 per cent. interest thereon from September 14, 1885, and costs of suit." Exhibit A, referred to in the amended bill of particulars, shows an account for goods sold and delivered by the plaintiffs to the defendant in various amounts, and at various times from July 17, 1883, up to September 14, 1885, amounting in the aggregate to $3,102.84, and for moneys paid by the defendant to the plaintiffs in various amounts, and during the same period of time, amounting in the aggregate to $3,102.84, and a claim for interest on the several balances, amounting in the aggregate to $129.20. After judgment in the justice's court the case was appealed to the district court, where the defendant demurred to the foregoing bill of particulars upon the following grounds: "(1) That the causes of action therein stated are improperly joined, and not numbered as required by law. (2) That the said bill of particulars or petition herein filed does not state facts sufficient to constitute a cause of action." This demurrer was sustained by the district court, and the plaintiffs' action dismissed, and judgment was rendered in favor of the defendant and against the plaintiffs for costs; and to reverse these rulings of the district court the plaintiffs, as plaintiffs in error, bring the case to this court.

Lapham & Brewster, for plaintiffs in error. G. W. McClelland, for defendant in error.

VALENTINE, J., (after stating the facts as above.) The defendant de marred to the plaintiffs' bill of particulars upon the following grounds: "(1)

That the causes of action therein stated are improperly joined, and not numbered as required by law. (2) That the said bill of particulars or petition herein filed does not state facts sufficient to constitute a cause of action." This demurrer was sustained by the court below, and the plaintiffs' action dismissed. We think the plaintiffs' bill of particulars set forth only one cause of action, and therefore that the first ground of the defendant's demurrer is untenable. The bill of particulars set forth an account between the plaintiffs and the defendant running from July 17, 1883, up to September 14, 1885, and during all that time there was a balance due in favor of the plaintiffs and against the defendant. This balance at all times constitutes one, and only one, cause of action. Waffle v. Short, 25 Kan. 503. But even if this account had constituted several causes of action, still they could all have rightfully been joined in one action, for they are all founded upon contract. Civil Code, § 83, subd. 2. And, further, a demurrer will not lie against a pleading supposed to be defective only in not separately numbering the several causes of action supposed to be stated therein. Civil Code, § 89. But the defendant, by the second ground of his demurrer, also claimed that the bill of particulars did not state any cause of action. We think it did. Interest may be recovered upon a balance due on an account. Gas Co. v. Schliefer, 22 Kan. 468. And certainly where the parties expressly agreed that interest should be paid on any balance that might be due at any time on the account, as was the case in the present action, we think interest may be recovered. The judgment of the court below will be reversed, and cause remanded, with the order that the defendant's demurrer be overruled, and for such other and further proceedings as may be proper in the case. All the justices concurring.

(39 Kan. 599)

DILLON v. HELLER.

(Supreme Court of Kansas. June 9, 1888.)

WRITS-SERVICE BY PUBLICATION-ACTIONS TO QUIET TITLE TO LAND.

In an action to quiet title to real estate, brought by a party in the actual possession of such real estate against a person who is a non-resident and out of the state, service of summons may be made by publication, and such service will give the court ample jurisdiction to hear and determine the case.

(Syllabus by the Court.)

Error to district court, Harper connty; J. T. HERRICK, Judge.

This was an action brought in the district court of Harper county by Martin Heller against John H. Dillon to quiet the title to lot No. 10, block No. 33, in the city of Anthony, in said county. Personal service of summons could not be obtained upon the defendant in Kansas, hence the plaintiff filed an affidavit for service of summons by publication, which reads as follows: "STATE OF KANSAS, HARPER COUNTY, ss.-In the District Court of the 19th

Judicial District, in Harper County, Kan.

"Martin Heller, Plaintiff, vs. John H. Dillon, Defendant.-Affidavit. "Isaac A. Love, being first duly sworn, says that he is attorney for the plaintiff herein; that the service of summons herein cannot be made upon the defendant in this state; that the defendant is a non-resident of this state, and that the above action is in relation to real estate situated within the state, in which the defendant claims an interest, and that the relief demanded is to exclude the defendant from any interest therein. ISAAC A. Love.

"Subscribed and sworn to before me this 25th day of August, 1886. [Seal] "F. O. MOTT, Clerk District Court." The notice to the defendant was duly published for three consecutive weeks in the Anthony Republican, a weekly newspaper printed and published in the city of Anthony, in said county, and having a general circulation in the county. Said notice reads as follows:

"Notice.

"STATE OF KANSAS, HARPER COUNTY, SS.-In the District Court of the 19th Judicial District, in Harper County, Kan.

"Martin Heller, Plaintiff, vs. John H. Dillon, Defendant.-Notice to NonResident.

"The defendant, John H. Dillon, is hereby notified that he has been sued by the plaintiff in the above-entitled action in the above court, and that he must answer the petition of the plaintiff in said action, filed on or before the 11th day of October, 1886, or the same will be taken as true, and judgment will be rendered, quieting the title in the plaintiff to the following described real estate, situated in Harper county, state of Kansas, to-wit, lot ten, (10,) in block No. thirty-three, (33,) in the city of Anthony. Witness my hand, and the seal of said court, this day of August, 1886. [Seal]

"F. O. MOTT, Clerk District Court.

"ISAAC A. LOVE, Attorney for Plaintiff." The defendant made a special appearance, and moved the court to quash the service by publication for the following reasons, to-wit: "First, that the same does not run in the name of the state of Kansas; second, that the court cannot acquire jurisdiction of the person in these cases to quiet title by such service, to-wit, service by publication." This motion was overruled; and, the defendant making no further appearance in the case, the court rendered judgment as upon a default in favor of the plaintiff and against the defendant, quieting the plaintiff's title to the above-mentioned real estate; and for costs, and the defendant, as plaintiff in error, brings the case to this court for review.

Grove & Shepard and W. S. Cade, for plaintiff in error. for defendant in error.

Isaac A. Love,

VALENTINE, J., (after stating the facts as above.) The plaintiff in error, who was defendant below, claims that the court below erred in the following particulars, and for the following reasons, to-wit: "First, that service of summons by publication in actions to quiet title is not sufficient to give the 'court jurisdiction of the party defendant; second, that the court, not having jurisdiction of the party defendant, cannot pronounce judgment in the matter; third, that the service by publication is null and void, and of no effect, because it does not run in the name or style of The State of Kansas;' fourth, that the service by publication is null and void for the reason that it is not dated of the day and date issued; fifth, that the affidavit to secure service by publication is wholly insufficient to base a service by publication upon, and, sixth, that the judgment is void and null for the reason that it was obtained without any evidence whatever." While the plaintiff in error does not in terms claim that a court cannot, in any case where the defendant is a nonresident and out of the state, obtain jurisdiction to hear and determine the case by virtue of a service of summons only by publication, yet, such is the result of his argument; and, in support of such argument, he cites a number of authorities, the principal of which is the case of Hart v. Sansom, 110 U. S. 151, 3 Sup. Ct. Rep. 586. We do not think, however, that the authorities cited go to the extent claimed for them. Of course, a court cannot obtain jurisdiction of the person of a non-resident defendant by means only of a service of summons by publication; nor can a court obtain jurisdiction of the person of any person who is a non-resident, and out of the state, by any kind of service, or by any kind of process or notice, for the jurisdiction of the courts of any sovereignty can never extend beyond the domain of the sovereignty which creates them. Amsbaugh v. Bank, 33 Kan. 100, 105, 5 Pac. Rep. 384. No court in Kansas can compel a non resident defendant out of the state to come within its territorial boundaries, or to submit himself to its jurisdiction, or to do or perform any other act or thing; but this lack of power

on the part of the court does not depend upon the character of the service of process made upon the defendant, but it arises from the well-established doctrine that the jurisdiction of one sovereignty (through its courts or otherwise) cannot extend into the territorial boundaries of another sovereignty. Therefore, for the purposes of this case, it will be admitted that the court below did not have jurisdiction of the person of the defendant below, (plaintiff in error.) But that does not settle this controversy. The court below had jurisdiction of something. It had jurisdiction of the plaintiff below, and it had jurisdiction of the subject-matter of the action. This latter proposition, however, is questioned. Jurisdiction is of two kinds: jurisdiction of the person, and jurisdiction of the property or thing in controversy; or, in other words, jurisdiction in personam and jurisdiction in rem. And jurisdiction in either case is sufficient to authorize a valid judgment to be rendered. Now, it may be admitted, for the purposes of this case, and is admitted, that the old equitable action to quiet title to real estate was purely an action in personam; and, indeed, it will be admitted that originally every action in equity was purely an action in personam. But such is not the case under the statutes of this state, and such is not the case with respect to the present action. The present action is purely a statutory action, brought by the plaintiff under section 594 of the Civil Code, and is one of a kind of actions which can be maintained only by a person who is in the actual possession of the property in controversy, either by himself or tenant. Where personal service of summons can be obtained in such an action, the action is one in personam as well as in rem; but, where service of summons can be had only by publication, then the action is one only in rem. The present action is one only in rem; and the court below had ample jurisdiction to hear and determine the same. For the present, we shall assume that the statutes authorizing service of summons by publication were strictly complied with in the present case, and then the only question to be considered is whether the statutes themselves are valid. Or, in other words, we think the question is this: Has the state any power, through the legislature and the courts, or by any other means or instrumentalities, to dispose of or control property in the state belonging to non-resident owners out of the state, where such non-resident owners will not voluntarily surrender jurisdiction of their persons to the state, or to the courts of the state, and where the most urgent public policy and justice require that the state and its courts should assume jurisdiction over such property? Power of this kind has always been exercised, not only in Kansas, but in all the other states. Lands of non-resident owners, as well as of resident owners, are taxed, and sold for the taxes; and the owners may thereby be totally deprived of such lands, although no notice is ever given to such owners except a notice by publication, or some other notice of no greater value, force, or efficacy. Beebe v. Doster, 36 Kan. 666, 675-677, 14 Pac. Rep. 150. Mortgage liens, mechanics' liens, material-men's liens, and other liens are foreclosed against non-resident defendants upon service by publication only. Lands of non-resident defendants are attached and sold to pay their debts; and, indeed, almost any kind of action may be instituted and maintained against non-residents to the extent of any interest in property which they may have in Kansas; and the jurisdiction to hear and determine, in this kind of cases, may be obtained wholly and entirely by publication. Gillespie v. Thomas, 23 Kan. 138; Walkenhorst v. Lewis, 24 Kan. 420; Rowe v. Palmer, 29 Kan. 337; Venable v. Dutch, 37 Kan. 515, 519, 15 Pac. Rep. 520. All the states, by proper statutes, authorize actions against non-residents, and service of summons therein by publication only, or service in some other form no better; and, in the nature of things, such must be done in every jurisdiction, in order that full and complete justice may be done, where some of the parties are non-residents. We think a sovereign state has the power to do just such a thing. All things within the territorial boundaries of a sovereignty are within its ju

risdiction; and, generally, within its own boundaries, a sovereignty is supreme. Kansas is supreme except so far as its powers and authority are limited by the constitution and laws of the United States; and, within the constitution and laws of the United States, the courts of Kansas may have all the jurisdiction over all persons and things within the state which the constitution and laws of Kansas may give to them; and the mode of obtaining this jurisdiction may be prescribed wholly, entirely, and exclusively by the statutes of Kansas. To obtain jurisdiction of anything within the state of Kansas, the statutes of Kansas may make service by publication as good as any other kind of service.

In the present case, the plaintiff resides within the state of Kansas, and he virtually surrendered jurisdiction of himself to the court below when he commenced this action. He is in the actual possession of the property in controversy, and, being in the actual possession thereof, he also, in effect, surrendered jurisdiction thereof to the court when he brought his action, and as much jurisdiction thereof as any court in any action could obtain by virtue of a seizure of the property by its own officers; and service of summons by publication, as authorized by law, was afterwards had in this case; and this gave the court the power to hear and determine the case, and to render a judgment therein, and to enforce such judgment; and this is all that is necessary to give complete and absolute jurisdiction over the thing in controversy. Jurisdiction is simply the power to hear and determine, and to enforce the judgment, order, or decree made or rendered on such hearing. Nothing can be lacking in the present case. The court had the power to hear and determine the case, the power to render the judgment prayed for; which was to quiet the plaintiff's title and possession; and he was in the actual possession of the property; and, as the property was and is within the territorial jurisdiction of the court, there would seem to be no good reason why the judgment is not valid, and why the court cannot enforce such judgment. It is said in the case of Hart v. Sansom, 110 U. S. 155, 3 Sup. Ct. Rep. 586, that "the courts of the state may, perhaps, feel bound to give effect to the service made as directed by its statutes. And, also: "It would doubtless be within the power of the state in which the land lies to provide by statute that if the defendant is not found within the jurisdiction, or refuses to make or to cancel a deed, this should be done in his behalf by a trustee appointed by the court for that purpose." Now, certainly, no court would feel bound to give effect to a statute unless the court believed the statute to be valid and an existing law; and if the state may rightfully provide by statute that any one of its courts may authorize a trustee to make or cancel a deed executed by or for a non-resident, or in which a nonresident is interested, then the state could unquestionably authorize the same court, by its judgment alone, to cancel, or, in effect, to create, the deed; for the trustee appointed by the court is the mere creature of the court, and can take no power, nor exercise any power, except such as emanates from the court itself. There can certainly be no necessity for the circuitous, indirect, and cumbrous mode of appointing a trustee to do a thing when the judgment of the court may itself answer the entire purpose. See Civil Code, § 400. If jurisdiction cannot be given to the court to render such a judgment, then, a fortiori, jurisdiction could not be given to the court to appoint a trustee for such a purpose. A court without jurisdiction cannot do anything,-not even to appoint a trustee. We think the court below had ample jurisdiction in the present case. We think a court may in any case, where the statute authorizes the same, obtain jurisdiction upon service by publication concerning anything present and existing within the boundaries of the state. To hold otherwise would unsettle and overturn a great many titles to land in this state,--titles which have long been acquiesced in, and supposed to be good and valid, and to be settled and established by the statutes and by numerous judicial decisions. And to hold otherwise would also do great injustice to innocent purchasers