Hall the one-fourth interest which L. M. Strong held in his own right, and also the one-fourth interest claimed by the plaintiff; To justify the court on appeal in disturb- that Hall was to organize a corporation to be ing a finding of the trial court, the party com-known as the Berlin Mining & Development plaining must show that the evidence preponderates against the finding.

Appeal from District Court, Silver Bow his interest in the contract to the defendant County; J. M. Clements, Judge.

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

that at the time of procuring such release in dispute, of a par value of $10 each, and or conveyance, if any, the Strongs knew the a decree was entered in accordance with value of plaintiff's interest, which, it is al- these findings and conclusions on July 19. leged, was $100,000, but fraudulently con- 1907. On January 13, 1908, the findings of cealed the fact from the plaintiff for the pur- fact, conclusions of law, and decree were pose of acquiring his interest; that at and amended, so as to read that plaintiff is the prior to such time plaintiff was addicted to owner of 5.000 shares of stock, instead of 7,the use of intoxicating liquors to such excess 500 shares; and afterwards a motion for a that he was incompetent to transact business, new trial was made by the defendants Strong which fact was known to the Strongs, and and overruled. Whereupon said defendants that he was encouraged in his drinking hab- served and filed a notice of appeal, wherein its by L. M. Strong and Morgan Strong, with they state that they appeal from the judgthe fraudulent purpose of procuring such re- ment of July 19, 1907, the judgment as lease or conveyance; and that, if such re- amended, and the order denying a new trial. lease or conveyance was in fact ever made by To perfect these appeals an undertaking in plaintiff, he did not understand or appreci- the sum of $300 was filed, wherein it is reate the nature of the transaction. The pray- cited that the defendants appeal from "the er is that plaintiff be decreed to be the own-judgment and amended judgment * * er of one-half of the shares of stock for and the order denying their motion for a new which L. M. Strong transferred the Butte trial.” property, and that such shares be impounded in the hands of the First National Bank and A. J. Davis, pending a final determination of this case.

The foregoing briefly paraphrases the amended complaint, and omits many allegations which are not deemed of consequence in the consideration of these appeals.

Respondent has moved to dismiss the appeals, for the reason that the same are taken from two judgments and an order denying a new trial, and but one undertaking is given. The motion to dismiss is denied. In the case of Watkins v. Morris, 14 Mont. 354, 36 Pac. 452, this court held that but one cost bond is required in appealing from a judgment and The defendant L. M. Strong first chal- an order denying a new trial, where such aplenged the jurisdiction of the court, and, hav- peal is consolidated into one record. The ing taken an exception to the ruling of the case of Wadleigh v. Phelps, 147 Cal. 135, 81 court denying his contention, answered, as Pac. 418, cited by the appellants, is in point. did the other defendants. After the trial In that case there was a motion to dismiss had been in progress for some time the plain- 11 separate appeals or attempted appeals tiff filed a supplemental complaint, in which from the judgment, verdict, and various orhe alleged that the $9,000 mortgage given ders entered in the cause. The court said: to L. M. Strong had been foreclosed, the Park "Respondent contends that the first six apcounty property sold under the decree, and peals should be dismissed because they are the indebtedness due to L. M. Strong fully from nonappealable orders. This is true, paid and discharged. It was developed at but an order dismissing these appeals would the trial that in 1902 Gassert had given to be a vain act, for the simple reason that each Maud Bond Strong one deed purporting to and every of the enumerated orders is reconvey one-half of his interest in his Butte viewable on the appeal from the judgment, property, and another deed purporting to con- and if that appeal stands the case would be vey his remaining interest; and that soon in exactly the same condition after such order thereafter Maud Bond Strong purported to as it is now-the orders would still be reconvey by deed to L. M. Strong the same viewable. And this, in our opinion, is a fact property. It was also developed at the trial which determines the true construction of the that the capital stock of the Berlin Mining notice. It is, in substance and effect, a no& Development Company was $200,000, repre- tice of appeal from a judgment, and nothing sented by 20,000 shares of stock of the par more. The special enumeration of the varivalue of $10 each. It was the contention ous orders reviewable on that appeal is mere of the plaintiff upon the trial that the note surplusage, and ought to be so treated, for for $9,000, executed in 1905 and secured by nothing can possibly come under review on the mortgage upon the Park county property, hearing which would not have been equally evidenced all his indebtedness to the Strongs subject to review if such enumeration had for moneys advanced and liabilities of his been altogether omitted." assumed by them. These appellants, on the contrary, controvert that theory and claim that Gassert's indebtedness to the Strongs and his liabilities assumed by them amounted to approximately $14,400, and that by the settlement of June 17, 1905, Gassert received $5,400 for his Butte property.

But it is urged by counsel for the respondent, on the authority of Creek v. Bozeman Waterworks Co., 22 Mont. 327, 56 Pac. 362, that the court cannot look into the record to ascertain the nature of the order or judg ment appealed from, because, where the ground urged for dismissal is that the appeal The court made findings of fact and drew has never been properly perfected, the record conclusions of law in favor of the plaintiff, is not before the court. But we do not find to the effect that he is the owner and entitled it necessary to examine the record in this to the possession of 7,500 shares of the stock case in order to arrive at the conclusion that

obvious reason that the process of a court of this state does not have any validity beyond the borders of the state. On the other hand, every state has jurisdiction over property situated within its limits, even though owned by a nonresident; and in proceedings against such property jurisdiction to render a valid judgment in rem may be acquired by substituted service. 19 Ency. Pl. & Pr. 612. We have, then, but a single inquiry to answer: Is this proceeding now before us one in personam? If it is, the substituted service upon L. M. Strong was ineffectual for any purpose.

there is but one judgment appealed from. I will not warrant a judgment in a proceeding Neither is it necessary to determine how strictly in personam, and that for the very many judgments there may be in one case. The undertaking recites that "the defendants are appealing from the judgment and amended judgment" of the court. There is no question of two judgments. It is the judgment as amended that is appealed from, and that fact appears on the face of the undertaking. The reference to this judgment be fore amendment is surplusage, and will be so regarded. The amended judgment took the place of the original, which became functus officio when the amendment was made. Having determined, then, that the undertaking we have been considering was not a nullity, it follows that the other defects therein pointed out by the respondent could be cured by filing a new undertaking (Woodman v. Calkins, 12 Mont. 456, 31 Pac. 63), which has been done. For the convenient dispatch of business in the district court of Silver Bow county, the court is divided into three departments. This cause originally fell into department No. 1, presided over by Judge J. J. Lynch; Judge Lynch transferred it to department No. 3, presided over by Judge Donlan; the latter was disqualified by the defendants, and on motion of the plaintiff he requested Judge Clements, of the First judicial district, to try the case; defendants objected to going to trial before Judge Clements, and urged as a ground of objection that either Judge Lynch or Judge Bourquin, the other judges of the Second judicial district, should first be requested to preside. The court overruled this objection, and this action is assigned as error. The comments upon this assignment of error found in appellants' brief are more in the nature of suggestions than arguments. No reason is urged why the action of Judge Donlan in calling in Judge Clements was not proper, and in view of section 6315, Rev. Codes, expressly reserving to a disqualified district judge the power to transfer the action or proceeding to some other court, or to call in another district judge to sit and act in such action or proceeding, we know of

none.

The defendant L. M. Strong is a resident of the state of New York, and service of summons was made upon him by publication pursuant to the provisions of section 637 of the Code of Civil Procedure of 1895 (Rev. Codes, § 6520), as in force prior to the amendment of 1907. It is insisted by appellants that such service was ineffectual, and Silver Camp Mining Co. v. Dickert, 31 Mont. 488, 78 Pac. 967, 67 L. R. A. 940, is cited in support of this contention. In the Silver Camp Case this court held that a suit to enforce the specific performance of a contract to convey real estate is a proceeding in personam, notwithstanding the fact that the land, the subject of the controversy, was located within this state and within the jurisdiction of the court; and we think it will not be questioned now that service by publication

It was early sought to classify all judicial proceedings and all judgments as in personam or in rem; but the courts and textwriters have encountered extreme difficulty in attempting to formulate satisfactory definitions of these terms. A proceeding in personam is one, in form as well as in substance, between the parties claiming the right, and that it is so inter partes appears from the record itself. 2 Smith's Lead. Cas. 692; Hine v. Hussey, 45 Ala. 496. The judgment in such a proceeding binds the judgment debtor to some sort of personal liability. As was early said by the Supreme Court of Massachusetts, such a judgment debtor "is not a passive party, but must be eminently active in the performance of any decree which may be made against him." Spurr v. Scoville, 3 Cush. (Mass.) 578. After all, these are tests rather than definitions. A leading definition of a judgment in rem is that given by Hall, J., in Woodruff v. Taylor, 20 Vt. 65: "A judgment in rem I understand to be an adjudication pronounced upon the status of some particular subject-matter by a tribunal having competent authori ty for that purpose.

A judgment

in rem is founded on a proceeding instituted, not against the person, as such, but against or upon the thing or subject-matter itself, whose state or condition is to be determined. It is a proceeding to determine the state, or condition of the thing itself; and the judgment is a solemn declaration upon the status of the thing, and it ipso facto renders it what it declares it to be." This definition, however, is criticised as being too narrow in 2 Black on Judgments, § 792. Of course, the judgment in personam binds only the parties and those in privity with them, while the judgment in rem binds all the world. 2 Black on Judgments, § 795. But it was early discovered that the cases would not all fall within either or both of these two classes, and a fairly successful attempt to dispel the confusion was made by adding a third class, designated proceedings quasi in rem. Respecting this class, the Supreme Court of the United States, in Freeman v. Alderson, 119 U. S. 187, 7 Sup. Ct. 166, 30 L. Ed. 372, said: "There is, however, a large class of cases which are not strictly actions in rem,

but are frequently spoken of as actions quasi In Heidritter v. Elizabeth Oil-Cloth Co., in rem, because, though brought against per- 112 U. S. 294, 5 Sup. Ct. 135, 28 L. Ed. 729, sons, they only seek to subject certain prop- the court, in adding to what had theretofore erty of those persons to the discharge of the been said upon the subject of jurisdiction, claims asserted. Such are actions in which held that jurisdiction may be acquired by the property of nonresidents is attached and held mere bringing of the suit in which a claim for the discharge of debts due by them to is sought to be enforced against property sitcitizens of the state, and actions for the uated within its territorial jurisdiction. In enforcement of mortgages and other liens. speaking of the method of drawing the propIndeed, all proceedings having for their sole erty actually within the jurisdiction of the object the sale or other disposition of the court, it is said: "This, as we have seen, is property of the defendant to satisfy the de- ordinarily done by actual seizure, but may mands of the plaintiff are in a general way be done by the mere bringing of the suit in thus designated. But they differ, among oth- which the claim is sought to be enforced, er things, from actions which are strictly in which may by law be equivalent to a seizure, rem, in that the interest of the defendant being the open and public exercise of dominis alone sought to be affected, that citation ion over it for the purpose of the suit." to him is required, and that judgment therein is only conclusive between the parties."

In Galpin v. Page, 3 Sawy. 93, Fed. Cas. No. 5,206, Mr. Justice Field, said: "Suits in rem may be divided into four classes: First, those which are directed primarily against,particular property, and are intended to dispose of it without reference to the title of individual claimants; second, those which are instituted to determine the status of particular property or persons: third, those which are, in form, personal suits, but which seek to subject property brought by existing lien or by attachment, or some collateral proceeding, under the control of the court, so as to give effect to the rights of the parties; and, fourth, those which seek to dispose of property, or relate to some interest therein, but which touch the property or interest only through the judgment recovered. The third and fourth classes mentioned are not strictly proceedings in rem; but so far as they affect property in the state, they are treated as substantially such proceedings."

There does not appear to be any serious controversy over the character of the action now under consideration. The dispute arises over the class into which it falls. The plaintiff, Adam Gassert, contends that of the 10,000 shares of the capital stock of the Berlin Mining & Development Company conveyed to L. M. Strong by that company, the legal title to some of which is in L. M. Strong himself, the remainder standing in the name of A. J. Davis, trustee, he (Gassert) is the equitable owner of 5,000 shares, and as to such 5,000 shares L. M. Strong is a trustee ex maleficio for the plaintiff's benefit. The shares are alleged to be in the possession of Davis in Butte, and the purpose of the action is to establish and enforce the trust; that is, to secure a decree confirming the title in Gassert to the 5,000 shares, holding L. M. Strong and Davis as involuntary trustees thereof for the use and benefit of Gassert, and directing the transfer of the stock on Finally, in Pennoyer v. Neff, 95 U. S. 727, the books of the company. While this action 24 L. Ed. 565, the court said: "Substituted is brought against L. M. Strong personally, service by publication, or in any other auit does not seek to subject him to any per- thorized form, may be sufficient to inform sonal liability, but its sole object is to sub-parties of the object of proceedings taken ject the shares of stock, which are within the jurisdiction of the court, to the claim of plaintiff. In the execution of the decree which was rendered, L. M. Strong is not an active factor at all. Davis is directed to surrender up the 5,000 shares, and the Berlin Mining & Development Company is directed to make the proper transfer on the books of

the company.

In Boswell's Lessee v. Otis, 9 How. (U. S.) 348, 13 L. Ed. 164, it is 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." Jennings v. Rocky Bar Gold Min. Co., 29 Wash. 726, 70 Pac. 136.

where property is once brought under the control of the court by seizure or some equivalent act. * * * In other words, such service may answer in all actions which are substantially in rem."

It has been quite generally held that an action to establish and enforce a trust in real estate is a proceeding quasi in rem (Porter Land & Water Co. v. Baskin [C. C.] 43 Fed. 323; Reeves v. Pierce, 64 Kan. 502, 67 Pac. 1108), and that "the courts of the

state where the trust property is situate have ministration of the trust, so far as the jurisdiction over the enforcement and adproperty within their jurisdiction is concerned." 22 Ency. Pl. & Pr. 21. And, again, it is said that a court having jurisdiction of a trust estate does not lose it by reason of the trustee's absence from the state. Pennington v. Smith (C. C.) 69 Fed. 188.

The Supreme Court of California, in Loaiza v. Superior Court, 85 Cal. 11, 24 Pac. 707,

9 L. R. A. 376, 20 Am. St. Rep. 197, remarked: | serve any useful purpose. We are satisfied "If the state court has such power with ref- from the record that the defendants Morgan erence to title to real estate held by a non- Strong, Maud Bond Strong, and L. M. Strong resident, how much the more will it have deliberately entered into a conspiracy fraudthe same with reference to personal proper- ulently to obtain from the plaintiff, Adam ty situate within its jurisdiction. And the Gassert, title to his interest in the Butte propreal and primary purpose of the action here erty, and that such conspiracy was successunder review is to determine the title and fully carried out. We think the complaint right to possession of the moneys and se- states a cause of action, and that Morgan curities now within the jurisdiction of the Strong and Maud Bond Strong were propercourt, secured from the plaintiffs in the ac- ly made parties defendant. The transactions tion by fraud, under a contract which they between Gassert and the Strongs covered a were by law authorized to rescind and did re- period of about four years, during which scind upon discovery of the fraud. Our stat-time Gassert was indebted to the Strongs in ute says that in such a case the person who gains a thing by fraud is an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it. Civ. Code, § 2224. This being so, it cannot be that the arm of equity is so short, or so weak, that the fraudulent trustee-he who has become trustee by fraud-by remaining beyond the jurisdiction of the court, can prevent the court from seizing upon the subject

of the trust within its jurisdiction, and re

storing it to the defrauded cestui que trust." From the facts stated in the complaint in this action, it appears that these 5,000 shares of stock are charged with a trust, and it can

not be urged that our courts are powerless

to enforce such trust, merely because one of the parties holding the legal title thereto is beyond the reach of the process of such courts. We think it sufficient to give the courts jurisdiction that either the party or the subject-matter of the trust is within the reach of the court. And this appears to be the holding of the courts. Felch v. Hooper,

119 Mass. 52.

To what class of actions, then, did section 610 above, before the amendment of 1907, apply? In the language of the Supreme Court, in Roller v. Holly, 176 U. S. 398, 20 Sup. Ct. 410, 44 L. Ed. 520, we think "it applies to all cases where under recognized principles of law suits may be instituted against nonresident defendants." That it was so intended we think is obvious from the general terms in which the section is couched; and, so far as we know, the only exception which can be made from the operation of its provisions is in actions in personam, strictly speaking. We are of the opinion that the present action is not such a one, but that it falls within the definition of a proceeding quasi in rem, and that substituted service upon L. M. Strong was sufficient to enable the district court to determine the relative rights of the parties to the stock in question, even though it would not be sufficient to warrant a personal judgment against L. M. Strong himself.

The record in this case covers 1,630 pages of closely printed matter. We have carefully read it all. It is impossible within any reasonable compass to make even a synopsis of the testimony, and the recital of the substance of the evidence given would not

large sums of money advanced to him, and for which the Strongs had security upon Gassert's property in Park and Silver Bow counties, including the Butte property above mentioned. During most of this time Gassert was in dire financial straights, and was addicted to drink to such an extent that he was incapacitated to a very great degree from He was constantly transacting business.

harassed by Morgan Strong, who was the principal acting factor, by Strong's refusal to give him a statement of their account, and by giving to him conflicting and meaningless

statements. We are inclined to believe that ing of the trial court that the indebtedness of the evidence is sufficient to justify the find$9,000, evidenced by the mortgage given by Adam Gassert's brother Charles to L. M. Strong soon after the settlement of June 17, 1905, and provision for which was made in that settlement, included all the indebtedness due from Adam Gassert to the Strongs, and included, also, the $700 cash paid to Gassert

at the time of such settlement; that when the Charles Gassert mortgage was foreclosed by Strong, and the Park county property was sold and the indebtedness evidenced by it fully paid, Adam Gassert's obligations to the Strongs were fully discharged; that, accepting the statement of the witness Ira T. Wight as to what transpired on June 17, 1905, when the settlement was made, as correct, which we do, Gassert's transfer or release of his Butte property to L. M. Strong was nevertheless without consideration to him, and that his consent to the settlement was the result of (1) his weakened mental condition resulting from his habitual intemperance, which condition was not only known to the Strongs, but was contributed to by L. M. and Morgan Strong by their furnishing liquor to Gassert, and evidently with the design to secure an unfair advantage over him, (2) his misapprehension as to the status of his account with the Strongs at the time of the settlement, (3) his ignorance of business generally, and (4) his ignorance of the value of the Butte property, which value was known to the Strongs and concealed from Gassert. But, furthermore, this Butte property had been covered by mortgages given by Gassert to Maud Bond Strong, which mortgages had