Combs v. Combs - 249 Ky. 155, 60 S.W.2d 368 (1933)

Rule:

A judgment in rem is an adjudication, pronounced upon the status of some particular subject matter, by a tribunal having competent authority for that purpose. It differs from a judgment in personam in this, that the latter judgment is, in form as well as substance, between the parties claiming the right; and that it is so inter partes appears by the record itself. It is binding only upon the parties appearing to be such by the record and those claiming by them. 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.

Facts:

The appellant, A. T. Combs, who was one of the defendants below, became indebted to the appellees and plaintiffs below, in a considerable sum. A lien to secure it was created on a tract of land in Washington county, Ark. Plaintiffs were and are residents of Kentucky and of other states, and all of them were and are nonresidents of the state of Arkansas. Appellant's brother, who was a joint defendant with him, is a resident of this commonwealth, and this action was filed by plaintiffs in the Breathitt circuit court against appellant and his brother to obtain a personal judgment against them for the amount of the debt. Personal process could not and was not served on appellant for a considerable time after he was proceeded against and made a defendant in the action. During that time he filed an equity action in the chancery court of Washington county, Ark., in which the land in lien was situated, against the plaintiffs in this action, and proceeded against them exclusively by constructive process in accordance with the prescribed practice of the Arkansas forum. In his petition in that court he set forth the facts creating the indebtedness, as well as the lien on his land to secure it, and stated that he had paid part of the debt, leaving a named sum as the balance due, and that the lien to secure it was a cloud on the title to his land which he desired released, and he asked that court to enter judgment fixing the amount of the balance due by him to plaintiffs in this action (but defendants in that one) and to permit him to pay that amount into that court to be followed by a decree canceling the lien on his land. The Arkansas practice for that kind of procedure was followed, and upon submission, without any of the defendants therein entering their appearance in any manner, that court adjudged that plaintiff therein, appellant herein, was indebted to the defendants in that action (plaintiffs herein) in the sum admitted in his petition, and ordered him to pay it to the master commissioner of that court which he did, and, when done, that the lien on his land should be released. Appellant then procured a copy of that proceeding and filed his answer in this action relying upon the Arkansas judgment in bar of a recovery herein. The court disallowed that defense and rendered judgment against appellant for the amount it found to be due plaintiffs, and to reverse it defendant prosecutes this appeal.

Issue:

Did the Arkansas court have jurisdiction even of the res, the Arkansas land, in this case, as based upon the ground alleged in the Arkansas petition?

Answer:

No

Conclusion:

The court held that if the position of the debtor was approved, then the due process clause of the Federal Constitution, and those of the various states, would have become a nullity in all cases of debts secured by liens retained upon property having a situs in a different jurisdiction from that of the creditor. The debtor in such cases could have become relieved of, not only the lien upon his property, but also of his personal obligation.