LEVY, J.
(after stating the facts as above). Under proper assignment the appellant challenges the ruling of the court, and contends that the judgment in issue, as far as it operated in personam, was under the facts void for the want of jurisdiction in the court to render such character of judgment. The question presented is to be considered under the conclusive facts that the defendant in the said judgment, though a citizen iof Texas and claiming Texas as his residence, was at the time of the suit and publication of the citation and rendition of judgment absent from the state of Texas and in St. Louis, Mo. He was in St. Louis, Mo., from December, 1892, to January 1, 1894. The purpose of his leaving and absence from the state of Texas at the time was, as found by the court, “to establish a home in some other place,” and he and his family in the spring of 1894 did remove to St. Louis, Mo., and have since resided there. It was shown that the suit in question was filed on November 30, 1892, to recover the amount of the note and to foreclose a lien on real estate in this state. Personal citation was issued to appellee on December 29, 1892, returnable to the April term of court, 1S93. This citation was returned by the sheriff on December 30, 1892, not executed as to appellee, and with the indorsement, “Learned to be out of the state of Texas.” Citation by publication, under the statute of this state, then issued on February 20, 1893, and was duly published four weeks, ending March, 1893. Judgment was finally rendered on October 3, 1893, against appellee personally for the amount of the note and execution awarded generally, as well as for foreclosure of the lien and sale of the land. The judgment on its face recited that it was rendered upon citation by publication based on the defendant’s being absent from the state of Texas. The defendant in the suit had no notice of the suit, and did not appear,
To make the appeal clear, it is admitted by appellant that the former judgment of the district court in issue was valid to the extent that it foreclosed a lien on the property as a proceeding in rem. It is contended by him that it is invalid as far as it was made a personal judgment, as it was, against appel-lee for any balance of the original obligation remaining unpaid after exhausting the property on which the foreclosure was had. Ap-pellee at the time of the instant suit was a citizen and resident of Missouri, but appeared and answered and defended the suit. Therefore, without question, appellant had the right to sue and have judgment rendered in his favor in the instant suit for the balance due on the original note, interest, attorney’s fees, and costs of court, with foreclosure of his attachment lien, if the former judgment in personam was a nullity for want of jurisdiction. If the former judgment was a valid judgment in personam, then it operated as a merger of the original cause of action, and was a bar to the original suit The trial court concluded as a matter of law that it was a valid judgment in personam. The facts positively appearing, as they do, upon the - record, any presumption of fact that would be required to be indulged in a •collateral attack upon a judgment here ceased, and the question presented becomes one of law.
The celebrated case of Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, has been uniformly regarded as placing beyond question the doctrine that a personal judgment against a nonresident, who- was not served within the state and who did not appear or assent to the mode of constructive service, is in
valid, even in the state where rendered-. In deference to the decision, the later decisions in this state have so followed the doctrine, and thus overturned earlier decisions of the state. Stewart v. Anderson, 70 Tex. 588, 8 S. W. 295; York v. State, 73 Tex. 651, 11 S. W. 869; Hardy v. Beaty, 84 Tex. 562, 19 S. W. 778. 31 Am. St. Rep. 80; Maddox v. Craig, 80 Tex. 600, 16 S. W. 328; Railway Co. v. Gay, 86 Tex. 586, 26 S. W.. 603, 25 L. R. A. 52. In that ease the United States Supreme Court held that the established principle of law there discussed forbids personal judgments against a nonresident upon constructive service only, and that such principle is so far fundamental that a judgment rendered in violation thereof, though authorized by a state statute,' violates the requirement of the Constitution as to due process of law. The fundamental principle so declared and applied in the case was, as stated in the opinion at the outset: “The authority of every tribunal is necessarily restricted by the territorial limits of the state in which it is established. Any attempt to exercise authority beyond those limits would be deemed in every other forum, as has been said by this court, an illegitimate assumption of power, and be resisted as a mere abuse.” The court stated the rules to be: (1) “That every state possesses exclusive jurisdiction' and sovereignty over persons and property within its territory,” and (2) “the other principle of law referred to follows from the one mentioned; that is, that no state can exercise direct jurisdiction and authority over persons or property without its territory.” And the
court,
remarked, “These views are not new. They have been frequently expressed, with more or less distinctness, in opinions of eminent judges, and have been -carried into adjudications in numerous eases,” and then quotes for illustration from decision of Mr. Justice Story. As the leading authority for^this principle, this case has been numerously applied by the citing cases. Sustaining and declaring the same principle are: Freeman v. Alderson, 119 U. S. 165, 7 Sup. Ct. 165, 30 L. Ed. 372; Wilson v. Seligman, 144 U. S. 41, 12 Sup. Ct. 541, 36 L. Ed. 338; Ellenwood v. Chair Co., 158 U. S. 105, 15 Sup. Ct. 771, 39 L. Ed. 913; Dull v. Blackman, 169 U. S. 243, 18 Sup. Ct. 333, 42 L. Ed. 733. See, also, Galpin v. Page, 18 Wall. 350, 21 L. Ed. 959; Ableman v. Booth, 21 How. 506, 16 L. Ed. 169.
Is the principle of the Pennoyér Case applicable and ruling the instant case? Neff, the party defendant in the judgment, it is true, was a nonresident of Oregon and a citizen and resident of California, and in that particular fact the instant case differs. But the two cases are identical in the fact of the absence of the defendant from the state at the time o.f publication. And it was to the fact of being beyond the reach of the process, and not to the status of citizenship, a majority of this court think that the court in that case was applying as governing the principle that ,a court has no power to extend its process beyond the limits of the state, and the laws of one state have no operation outside of its own territory. The court was determining whether or not there had been in fact any legal service upon the defendant, as essential to the jurisdiction of the court over the person of the defendant and the validity of the judgment. It is a cardinal principle that an opportunity be given for a day in court to the defendant by legal service. It is the fact appearing of service, that gives the court jurisdiction in personal judgments.
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LEVY, J.
(after stating the facts as above). Under proper assignment the appellant challenges the ruling of the court, and contends that the judgment in issue, as far as it operated in personam, was under the facts void for the want of jurisdiction in the court to render such character of judgment. The question presented is to be considered under the conclusive facts that the defendant in the said judgment, though a citizen iof Texas and claiming Texas as his residence, was at the time of the suit and publication of the citation and rendition of judgment absent from the state of Texas and in St. Louis, Mo. He was in St. Louis, Mo., from December, 1892, to January 1, 1894. The purpose of his leaving and absence from the state of Texas at the time was, as found by the court, “to establish a home in some other place,” and he and his family in the spring of 1894 did remove to St. Louis, Mo., and have since resided there. It was shown that the suit in question was filed on November 30, 1892, to recover the amount of the note and to foreclose a lien on real estate in this state. Personal citation was issued to appellee on December 29, 1892, returnable to the April term of court, 1S93. This citation was returned by the sheriff on December 30, 1892, not executed as to appellee, and with the indorsement, “Learned to be out of the state of Texas.” Citation by publication, under the statute of this state, then issued on February 20, 1893, and was duly published four weeks, ending March, 1893. Judgment was finally rendered on October 3, 1893, against appellee personally for the amount of the note and execution awarded generally, as well as for foreclosure of the lien and sale of the land. The judgment on its face recited that it was rendered upon citation by publication based on the defendant’s being absent from the state of Texas. The defendant in the suit had no notice of the suit, and did not appear,
To make the appeal clear, it is admitted by appellant that the former judgment of the district court in issue was valid to the extent that it foreclosed a lien on the property as a proceeding in rem. It is contended by him that it is invalid as far as it was made a personal judgment, as it was, against appel-lee for any balance of the original obligation remaining unpaid after exhausting the property on which the foreclosure was had. Ap-pellee at the time of the instant suit was a citizen and resident of Missouri, but appeared and answered and defended the suit. Therefore, without question, appellant had the right to sue and have judgment rendered in his favor in the instant suit for the balance due on the original note, interest, attorney’s fees, and costs of court, with foreclosure of his attachment lien, if the former judgment in personam was a nullity for want of jurisdiction. If the former judgment was a valid judgment in personam, then it operated as a merger of the original cause of action, and was a bar to the original suit The trial court concluded as a matter of law that it was a valid judgment in personam. The facts positively appearing, as they do, upon the - record, any presumption of fact that would be required to be indulged in a •collateral attack upon a judgment here ceased, and the question presented becomes one of law.
The celebrated case of Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, has been uniformly regarded as placing beyond question the doctrine that a personal judgment against a nonresident, who- was not served within the state and who did not appear or assent to the mode of constructive service, is in
valid, even in the state where rendered-. In deference to the decision, the later decisions in this state have so followed the doctrine, and thus overturned earlier decisions of the state. Stewart v. Anderson, 70 Tex. 588, 8 S. W. 295; York v. State, 73 Tex. 651, 11 S. W. 869; Hardy v. Beaty, 84 Tex. 562, 19 S. W. 778. 31 Am. St. Rep. 80; Maddox v. Craig, 80 Tex. 600, 16 S. W. 328; Railway Co. v. Gay, 86 Tex. 586, 26 S. W.. 603, 25 L. R. A. 52. In that ease the United States Supreme Court held that the established principle of law there discussed forbids personal judgments against a nonresident upon constructive service only, and that such principle is so far fundamental that a judgment rendered in violation thereof, though authorized by a state statute,' violates the requirement of the Constitution as to due process of law. The fundamental principle so declared and applied in the case was, as stated in the opinion at the outset: “The authority of every tribunal is necessarily restricted by the territorial limits of the state in which it is established. Any attempt to exercise authority beyond those limits would be deemed in every other forum, as has been said by this court, an illegitimate assumption of power, and be resisted as a mere abuse.” The court stated the rules to be: (1) “That every state possesses exclusive jurisdiction' and sovereignty over persons and property within its territory,” and (2) “the other principle of law referred to follows from the one mentioned; that is, that no state can exercise direct jurisdiction and authority over persons or property without its territory.” And the
court,
remarked, “These views are not new. They have been frequently expressed, with more or less distinctness, in opinions of eminent judges, and have been -carried into adjudications in numerous eases,” and then quotes for illustration from decision of Mr. Justice Story. As the leading authority for^this principle, this case has been numerously applied by the citing cases. Sustaining and declaring the same principle are: Freeman v. Alderson, 119 U. S. 165, 7 Sup. Ct. 165, 30 L. Ed. 372; Wilson v. Seligman, 144 U. S. 41, 12 Sup. Ct. 541, 36 L. Ed. 338; Ellenwood v. Chair Co., 158 U. S. 105, 15 Sup. Ct. 771, 39 L. Ed. 913; Dull v. Blackman, 169 U. S. 243, 18 Sup. Ct. 333, 42 L. Ed. 733. See, also, Galpin v. Page, 18 Wall. 350, 21 L. Ed. 959; Ableman v. Booth, 21 How. 506, 16 L. Ed. 169.
Is the principle of the Pennoyér Case applicable and ruling the instant case? Neff, the party defendant in the judgment, it is true, was a nonresident of Oregon and a citizen and resident of California, and in that particular fact the instant case differs. But the two cases are identical in the fact of the absence of the defendant from the state at the time o.f publication. And it was to the fact of being beyond the reach of the process, and not to the status of citizenship, a majority of this court think that the court in that case was applying as governing the principle that ,a court has no power to extend its process beyond the limits of the state, and the laws of one state have no operation outside of its own territory. The court was determining whether or not there had been in fact any legal service upon the defendant, as essential to the jurisdiction of the court over the person of the defendant and the validity of the judgment. It is a cardinal principle that an opportunity be given for a day in court to the defendant by legal service. It is the fact appearing of service, that gives the court jurisdiction in personal judgments. So if it be conceded, as it must, that constructive notice has no extraterritorial force, and such notice only is, as here, relied on to sustain a personal judgment against a defendant who was not in fact within the state, then it would affirmatively appear in the record in legal effect a want of any service upon the defendant. . To say otherwise would be to reverse the rule of law and state that the published notice had legal force outside the limits of the state,- and to charge the defendant with notice. In such event the defendant out of the state would be held to know the fact of notice in the face of the law declaring such notice ineffectual and void, and not existent or potent as a legal fact. It would be an inconsistent rule that makes valid the same act and procedure that is deemed at. the same time ineffectual and void and without the power of. the court. And to predicate the test of jurisdiction of the court here to render personal judgment on constructive notice only, upon the fact of being beyond the territorial limits and bounds of the court’s process, rather than the mere fact of being in the relation of citizen towards the state where the court’s process issues, makes the principle involved, we think, reasonable. To grant jurisdiction because of the bare fact of being in the relation of citizen to the particular state predicates the authority of the court to enter the personal judgment on such notice upon the ground, either that citizenship as a political status makes, as a conclusive matter of law, the particular citizen constructively present within the territorial limits of the court’s process, though in fact absent, or it gives extraterritorial force to the court’s process when he is absent from the state. It would be fallacious reasoning, it is believed, to so argue that upon that ground the defendant has had his day in court by due process of law. The Supreme Court of this state, in Railway Co. v. Gay, supra, 86 Tex. 586, 26 S. W. 603 (25 L. R. A. 52), in speaking to the principle that no judicial process can have lawful authority outside of the jurisdiction of the court issued, says: “Whether want of jurisdiction arises from the fact that- the thing to be affected by judgment and process of a court is without its territorial jurisdiction or with
out its jurisdiction for any other reason is unimportant, for in either case the process is invalid, because the court has not jurisdiction.” The following eases apply the rule as to citizens who are absent from the state: De la Montanya v. De la Montanya, 112 Cal. 101, 44 Pac. 345, 32 L. R. A. 82, 53 “Am. St. Rep. 165; Smith v. Grady, 68 Wis. 215, 31 N. W. 477. In Biekerdike v. Allen, 157 Ill. 95, 41 N. E. 740, 29 L. R. A. 782, it was held that mere publication would not, as against a citizen gone out of the state, be sufficient, but that the publication supplemented by mailing to him a notice was sufficient. There is involved, we think, a federal question.
Under the facts of this case, and in conformity with the principle of law discussed, a majority of this court are of the opinion that the trial, court erred in holding that the judgment in issue was a valid personal judgment; and it is ordered that the judgment of the court be reversed and here rendered for appellant, with costs of appeal against the appellee.