#### R. C. BRIDGER v. J. R. MITCHELL.

(Filed 12 March, 1924.)

Summons — Ser-rice—Process—Publication—Nonresidents—Judgment in Personam — Special Appearance — Jurisdiction—Judgments set Aside.

Where a nonresident defendant of this State has had no personal service of summons made upon him and has not accepted service, and has no property herein subject to attachment or levy, a judgment upon publication of service under the provisions of our statute, C. S., 411, may not be rendered against him in personam, in an action for debt; and where so rendered it will be set aside upon special appearance of his attorney who moves therefor upon the ground of improper service, and the want of jurisdiction of our courts.

Appeal by plaintiff from Kerr, J., at October Term, 1923, of Heet-eoed.

Civil action.

Stanley Winborne and R. C. Bridger for plaintiff.

John E. Vann for defendant.

Clarkson, J.

This is an action on a judgment obtained by plaintiff against the defendant at April Term, 1913, of the Superior Court of Hertford County, for the sum of $800, with interest from 25 April, 1913; cost, $92.65, and cost of the a’ction.

The suit, was commenced in Hertford County, and the usual summons in such cases issued to the sheriff of said county. The sheriff returned on the summons: “Received 14 April, 1923; served; defendant, J. R. Mitchell, not to be found in Hertford County.” Alias summons dated 1 May, 1923, was issued to sheriff of Mecklenburg County. The sheriff returned on the summons: “Received 12 May, 1923; served; defendant, J. R. Mitchell, not to be found in this county.”

The plaintiff, before the clerk of the Superior Court of Hertford County, made the usual affidavit and prayer for service of summons on the defendant by publication, alleging the defendant was a nonresident of the State, etc.

The clerk made the-usual order of service by publication, “requiring the defendant to appear before the clerk of the Superior Court of Hert-ford, at his office in Winton, N. C., on 21 June, 1923, at the courthouse in said county, and answer or demur to the complaint of plaintiff, or the relief therein demanded will be granted.”

On 21 June the defendant, through his counsel, entered a special appearance and made.the following motion: “John E. "Vann, attorney, enters a special appearance for the defendant in this action, and moves *375to dismiss said action for improper service and want of jurisdiction.” Tbe clerk refused tbe motion and gave judgment for plaintiff for tbe amount set forth in tbe complaint. Tbe defendant excepted and appealed to tbe Superior Court in term. Tbe motion was renewed there, and tbe court below overruled tbe judgment -of tbe clerk and dismissed tbe action for want of proper service of summons and want of jurisdiction. From this judgment plaintiff excepted and assigned error, and appealed to this Court.

This action raises tbe question of a judgment in personam and judgment in rem.

Notwithstanding tbe just and meritorious action of plaintiff, we do not think tbe suit on tbe judgment against tbe defendant, who, tbe record shows, is a nonresident of tbe State, obtained in 1913, can be maintained, unless there is actual personal service of summons on tbe defendant, or acceptance of summons by him or bis authorized agent or attorney, or general appearance. Tbe courts of this State have no extra territorial jurisdiction over a person.

If tbe defendant has property in this State, it would be subject to attachment for tbe debt, if not barred by tbe statute of limitations. Tbe statute of limitations as to persons out of tbe State is as follows:

> “If, when tbe cause of action accrues or judgment is rendered or docketed against a person, be is out of tbe State, action may be commenced, or judgment enforced, within tbe times herein limited, after tbe return of tbe person into this State; and if, after such cause of action accrues or judgment is rendered or docketed, such person departs from and resides out of this State, or remains continuously absent therefrom for one year or more, tbe time of bis absence shall not be a part of tbe time limited for tbe commencement of tbe action or tbe enforcement of tbe judgment.” C. S., 411.

It is said by Hoke, J., in Johnson v. Whilden, 166 N. C., 109 : “It is now tbe well-established principle that no valid judgment in personam can be obtained against a nonresident or other for an ordinary money demand except on personal service of process within tbe territorial jurisdiction of tbe court, or unless there has been proper acceptance of service or a general appearance, actual or constructive, by which tbe party submits bis cause to tbe court’s jurisdiction. Tbe position is modified, or, rather, a different rule obtains, where, in such an action, duly instituted and on attachment issued, there has been a valid levy of property of defendant in tbe jurisdiction, bringing tbe same within tbe custody of tbe court, in which case tbe question of indebtedness may be considered and determined in so far only as tbe value of tbe property may be made available in satisfaction of tbe claim by sale under final process or further decree in tbe cause; beyond this value, no judgment in per- *376 sonam may be entered or enforced. Pennoyer v. Neff, 95 U. S., 714, and 9 Rose’s Notes tbereon, pp. 338-39, et seq.; Warlick v. Reynolds, 151 N. C., 606; Bernhardt v. Brown, 118 N. C., 701.” Long v. Insurance Co., 114 N. C., 466; Vick v. Flournoy, 147 N. C., 209; Everitt v. Austin, 169 N. C., 622; Mitchell v. Talley, 182 N. C., 688; Johnson v. Whilden, 171 N. C., 157.

We do not third: the case of White v. White, 179 N. C., 599, applicable to the case at bar. That was a suit for divorce and alimony by a wife against her husband, who had abandoned her. The absconding husband left real estate in this State. The Court said: “As said in Bernhardt v. Brown, 118 N. C., 705, ‘Publication is authorized in those eases in which the court already has jurisdiction of the res, as to enforce some lien or a partition of property in its control, or the like, and the judgment has no personal force, not even for the costs, being limited to acting upon the property.’ It is further said (p. 706) : ‘In proceedings under this class — proceedings in rem — it is not necessary, as in proceedings quasi in rem, to acquire jurisdiction by actual seizure or attachment of the property, but it may be done by the mere bringing of the suit in which the claim is sought to be enforced, which in law (in such cases) is equivalent to a seizure, being the open and public exercise of the dominion over it for the purpose of the suit.’ ”

We think the ruling of the court below was in accordance with law. The judgment must be, on that account,

Affirmed.