Marlett v. Wilson, 30 Ind. 240; Baker v. State, 56 Wis. 568; Baker v. State, 65 Wis. 50. The proceeding is governed by the rules of civil practice, but the only process provided for is a warrant.

Morris v. State, 115 Ind. 282.

The defendant in a bastardy case can only be brought in, in the mode provided by statute. It will certainly not be controverted that a process unauthorized by statute is a nullity. So also a publication unless authorized by statute is void.

Brenner v. Quick, 88 Ind. 546; Dowell v. Lahr, 97 Ind. 151; Brown v. Goble, Id. 86;

his residence, and perhaps other modes of constructive service, may be authorized by the laws of the state. But in the case of nonresidents personal service cannot be dispensed with unless the defendant voluntarily appears." To the same effect is Beard v. Beard, 21 Ind. 321.

A statute providing for service of process in actions in personam of a strictly judicial character and proceeding according to the course of the common law, by publication, upon residents who can be found within the state is unconstitutional, because such service is not "due process of law." Bardwell v. Collins, 9 L. R. A. 152, 44 Minn. 97.

A judgment rendered against a resident of the state where rendered upon constructive service of process authorized by its laws will be held as valid by its courts as though rendered upon personal service. Thouvenin v. Rodrigues, 24 Tex. 468, 477. A personal judgment against a resident of the state where it is rendered upon constructive service of process in accordance with local statutes will be enforced in the courts of another state. Budford v. Kirkpatrick, 13 Ark. 33; Nunn v. Sturges, 22 Ark. 389: Mitchell v. Ferris, 5 Houst. (Del.) 84; Cassidy v. Seitch, 2 Abb. N. C. 315.

A personal judgment rendered against a resident of the state upon service of process upon him in accordance with the statute by leaving the same at his usual place of abode is valid until set aside by some direct proceeding taken for that purpose. Hurlbut v. Thomas, 55 Conn. 181; Biesenthall v. Williams, 1 Duv. 329, 85 Am. Dec. 629.

In Huntley v. Baker, 33 Hun, 578, a personal judgment was held valid when sued upon in New York, although rendered in Wisconsin upon service of the summons by leaving it at the defendant's domicil, in accordance with the laws of the latter state, he having left the state without intending to return but not having yet acquired another domicil. The court said, page 580: "Without stating the principle more at length, it may be assumed that by reason of the relation between the state and its citizen, which affords protection to him and his property and imposes upon him duties as such, he may be charged by judgment in personam binding on him everywhere as the result of legal proceedings instituted and carried on in conformity to the statute of the state, prescribing a method of service which is not personal and which in fact may not become actual notice to him."

In Fernandez v. Casey, (Tex.) May 27, 1890, a judg

Vizzard v. Taylor, Id. 93; Fontaine v. Houston, 58 Ind. 316; Freeman, Judgm. § 127.

Notice by publication can only be given in proceedings in rem. In proceedings in rem,

the res is under control of the court and it

alone is subject to its judgment. If there be neither jurisdiction of person nor rem the whole proceeding is a nullity.

Stone v. Myers, 9 Minn. 303, 86 Am. Dec. 104. See also note to Molyneux v. Seymour, 76.

Am. Dec. 662-670.

Where the record shows one kind of notice there can be no presumption that there was any other.

Ely v. Tallman, 14 Wis. 32, cited in note to Rape v. Heaton, 76 Am. Dec. 280; Barber v. Morris, 37 Minn. 194.

Mr. J. B. Milner for appellee.

Reinhard, J., delivered the opinion of the

court:

The appellant is the guardian of his son, Dennis, a minor, who, until the fall of 1887, was a resident of Tippecanoe county, when it is claimed he left the state and became a nonresident. It appears that after Dennis left the

ment against one who had left the state intending to seek a home elsewhere, but who afterward returned to the state to live without acquiring a domicil elsewhere, was rendered upon service by publication during his absence and execution thereon levied upon his lands after his return. An injunction against the sale thereunder was refused on the ground that the judgment was valid. It does not appear whether the lands were acquired after his return or not. This is an extreme extension of the doctrine of the right of a state to bind her citizens. by any mode of serving process and while it may be distinguished from the decisions in Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565, and analogous cases by the citizenship of the defendant, it is in conflict with the language used in the opinions in those cases.

See Wilson v. Seligman, 144 U. S. 41, 36 L. ed. 338. If process be served upon a defendant according to the laws of the state of which he is at the time a resident, the judgment rendered there is valid as a bar to an action in another state on the same cause of action. Harryman v. Roberts, 52 Md. 64.

A judgment against a resident of the state rendered upon attachment of his land and service of process by leaving it at his place of abode, will support an action in another state for the balance remaining unsatisfied after a sale of the attached land. Fullerton v. Horton, 11 Vt. 425.

A personal judgment against one who had left the state intending not to return, rendered upon service of process by leaving it with his wife at his recent place of abode, will not sustain an action in another state. Amsbaugh v. Exchange Bank of Maquoketa, 33 Kan. 100.

An action is not maintainable in New York on a judgment rendered in Massachusetts where jurisdiction was obtained by attaching defendant's property and by substituted service of process, he having at the time removed into and become a resident of New York, notwithstanding the judgment was valid under the laws of Massachusetts. Kilburn v. Woodworth, 5 Johns. 37, 4 Am. Dec. 321. To the same effect is Robinson v. Ward, 8 Johns. 86, 5 Am. Dec. 327.

In Eliot v. McCormick, 3 New Eng. Rep. 871, 144. Mass. 10, it is said that Pennoyer v. Neff, 95 U. S. 714, 24 L. ed. 565, and Freeman v. Alderson, 119 U. S. 185, 30 L. ed. 372, "modify the application and effect of our statutes, and overrule the adjudications of this court, so far as they hold that a judg

The principal question thus presented by the record is whether a personal judgment in a bastardy proceeding is or is not void where the record shows on its face that the only service had upon the defendant was notice by publication. The appellee's counsel in their brief says: "As we conceive it, the question is, Can a personal judgment be rendered against a citizen of this state who has left the state to avoid the service of process? The affidavit for publication states that Dennis Moyer, the ward, is a resident of the state. The notice treats him as a nonresident; so does the order of court. We submit that the affidavit characterizes the proceeding and is the basis of it, and under the statute, though the subsequent proceedings are irregular, some notice was given, and it is sufficient." Looking at the case, then, from the view most favorable to the appellee, the question still remains, May a personal judgment be rendered in a bastardy proceeding against a defendant who has not been arrested or in custody, and upon whom no process has been served, except notice by publication, even though he be a resident of the state, but temporarily absent therefrom? This question, we do not hesitate to say, must be decided adversely to the claims of the appellee. We are not unaware of the rule that, where notice is given by publication, the judgment of the court that the publication and affidavit upon which it is based are sufficient to give it jurisdiction is conclusive upon all the parties as against a collateral attack. Essig v. Lower, 120 Ind. 239; Goodell v. Starr, 127 Ind. 198. But it must be evident that this rule by no means keeps a personal judgment from being void which has been rendered upon no other notice than by publication. In Jackson v. State, 104 Ind. 516, 1 West. Rep. 840, the rule was expressed as follows: "If there be a notice of publication, or whatever of this nature the law requires in reference to persons or other matters, its sufficiency cannot be questioned collaterally;" and further on the court says: "It has long been the rule in this state that, where a court is required to determine whether facts essential to jurisdiction exist, a judgment that they do exist will be conclusive as against collateral attack."

But what was it the law required the court to determine in those cases with reference to the notice? By an examination of those cases, it will be found that the proceedings there were in rem, and no other kind of judgments were sought or obtained. The only fact essential for the court to determine in reference to its jurisdiction was whether the notice and affidavit were sufficient in order to make valid a judgment in rem. There was no occasion to decide whether such notice and affidavit would

there is no statute authorizing notice ty publication, it is doubtful whether it is good, even for a basis of a judgment in rem; and certainly it could not be claimed successfully that it will authorize a personal judgment, in the absence of a special statute to that effect. Where a personal judgment is sought it devolves upon the court, as preliminary to the hearing, to determine whether personal service has been had. If it determines this question in the affirmative, and it appears that some personal service was in fact had, the judgment may be ever so irregular or voidable, but it is not void, and will be sufficient to withstand any collateral attack. As a general rule, a personal judgment is absolutely void where it appears upon its face that the court had no jurisdiction either of the person or the subjectmatter. Louisville, N. A. & C. R. Co. v. Hubbard, 116 Ind. 193; Kingman v. Paulson, 126 Ind. 507; Quarl v. Abbett, 102 Ind. 233. Ordinarily, in civil actions, where there is no appearance for the defendant, a summons and service thereof is necessary in order to give the court jurisdiction of the person of the defendant, so that it may render a personal judg ment. While a bastardy proceeding is in some sense a civil action, the process required there is a capias or warrant. Morris v. State, 115 Ind. 282, 14 West. Rep. 87. Where a defendant in such a proceeding has been once arrested on a warrant and escapes, and then the cause is certified to the circuit court under the statute, it seems that the trial may proceed in his absence, and he may thereafter be arrested again, and be compelled to comply with the court's orders. Patterson v. State, 91 Ind. 364; Lucas v. Hawkins, 102 Ind. 64, overruling Patterson v. Pressley, 70 Ind. 94. But we know no law authorizing any kind of legal proceedings against anyone without some process, and, upon every principle underlying our system of jurisprudence, such a proceeding would be a nullity. In this state the process required is usually prescribed by the statute. The pertinent inquiry for us to make, therefore, is, What sort of process has the statute provided in such cases, and has the statutory provision been complied with? We have already seen that the kind of process which the statute requires is a warrant or capias. Morris v. State, supra. The statute nowhere provides for notice by publication in bastardy cases. Freeman says that "a publication, in the absence of any law authorizing it, is the same in effect as no publication. A judgment based upon it is void." Freeman, Judgm. 127. But even if this is not so, and even if there were a statute expressly authorizing notice by publication in bastardy cases, as was once the case, we apprehend such statute would be applicable only to such portion of the proceedings as might be considered strictly in rem. Such notice might be sufficient to authorize the court, in the absence of the defendant, to fix the status of the parties, determine the paternity of the child, etc.; but as to that we of course decide nothing. The action of the court goes no further than that. No personal judgment could be rendered on such notice,

We are referred to the case of Davidson v. State, 62 Ind. 276, as relied upon by the court below to support its decision. In that case, however, the question of the validity of a personal judgment rendered upon constructive service was not before the court. There the proceeding had been instituted before a justice of the peace. A warrant had been issued for the defendant and returned Not found." The justice proceeded to hear the case in the absence of the defendant, and found that he was the father of the bastard child. He certitied the case to the circuit court. At the next term of the court an affidavit of nonresidence was filed, and notice by publication had. At a succeeding term of the court the cause was tried on default of the defendant, and a finding was made that he was the father of the child, and the cause was continued without fixing the amount the defendant was to pay, or rendering any judgment against said defend ant whatever. Shortly afterwards a warrant was issued upon which the defendant was arrested, and gave bail for his appearance at the next term of court, when he appeared and moved to set aside the default, which motion the court overruled. After a motion in arrest had been made and overruled, the court rendered final judgment on the default and finding previously entered. The only question was whether the default was legal, for up to that time no judgment had been rendered. The court held that it was, but it was not called upon to decide, and did not decide, that a rersonal judgment upon such finding alone w. valid, because no judgment had been ren

the court to proceed in the defendant's absence. and determine the status of the parties, but it did not authorize the rendition of any personal judgment, nor did the court so decide. The case is therefore no authority by which we feel bound. A few other cases of an earlier date would seem to intimate that a defendant in a bastardy proceeding might be properly served with notice by publication. Melton v. State, 9 Ind. 452; Hunter v. State, 6 Blackf. 382. However, what validity should be given to a personal judgment which has been rendered upon such notice only is not determined by any of those cases, as they turned upon other questions not here involved. The appellee cites Beard v. Beard. 21 Ind. 321, as an authority that a personal judgment on a notice by publication may be rendered against a resident of the state who is temporarily absent. But we do not regard that case as determinative of the question before us, and, if counsel will examine it carefully, they will find that the court even there declare that, in the absence of a statute, a constructive service upon a resident of the state while absent is void, and that he should be served by copy of the summons at his last usual place of residence. Whatever the court intimates there as to the power of the Legislature to make a law which would make notice by publication effective is without controlling force here, as it has not been attempted to make such a law for such cases as the one we are now considering. From what has been said it will be apparent that we regard the rulings of the court as erroneous. There was no legal evidence to sustain its finding and judgment, and the motion for a new trial should have been sustained. The court erred also, we think, in sustaining the demurrer to the third and fourth paragraphs of the answer.

Judgment reversed, with instructions to the court below to proceed in accordance with this 'decision.

for residence is not implied on the lease of the whole of an unfurnished dwelling for a definite term under a single contract which contains no covenant that the premises are in good repair or that the lessor will put or keep them so. 2. A representation that the plumbing is in good order, made on the lease of NOTE. The authorities on the question of an implied covenant that premises leased for a dwel

ling are fit for habitation are well presented in the

report of the above case.

For an exception in case of a lease of furnished rooms at a summer resort, see Ingalls v. Hobbs

(Mass.) ante, 51. 15 L. R. A.

of the General Term of the Court of Common Pleas for the City and County of New York, affirming a judgment of the Special Term in favor of plaintiff in an action brought to recover the balance of rent due under the

terms of a written lease. Affirmed.

Statement by Follett, Ch. J.:

September 27, 1888, the litigants entered into a written lease by which the plaintiff

let to the defendant an unfurnished dwel

ling, known as "334 West Fifty-eighth Street," in the city of New York, for one year from October 15, 1888, for $1,800, pay