The foundation of jurisdiction is physical power, although in civilized times it is not necessary to maintain that power throughout proceedings properly begun, and although submission to the jurisdiction by appearance may take the place of service upon the person. No doubt there may be some extension of the means of acquiring jurisdiction beyond service or appearance, but the foundation should be borne in mind. Subject to its conception of sovereignty even the common law required a judgment not to be contrary to natural justice. And in states bound together by a constitution and subject to the Fourteenth Amendment, great caution should be used not to let fiction deny the fair play that can be secured only by a pretty close adhesion to fact.
A person domiciled in Texas left the State intending to make his home elsewhere, his family residing there meanwhile. During his absence, an action for money was begun against him in a Texas court. After returning and remaining for a short time, he departed finally and established a domicile in another State. The only service in the action was by publication in a newspaper after his final departure from Texas. He did not appear in the suit. Based on this service, a personal judgment for money was rendered against him. On appeal, this judgment was sustained under the laws of Texas by the Supreme Court of the State which rendered the judgment as a good personal judgment, overruling the plaintiff's contention that to give it that effect was to deny the constitutional right to due process of law.
Does service by publication warrant a personal judgment against a non-resident?
In its decision, the Court stated that an advertisement in a local newspaper was not sufficient notice to bind a person who had left a state intending not to return. To dispense with personal service, the substitute that was most likely to reach the maker was the least that should have been required if substantial justice was to be done. Whatever the rule regarding decrees concerning status or its incidents was, an ordinary personal judgment for money, invalid for want of service amounting to due process of law, was as ineffective in the state as it was outside of it. The Court concluded that the personal judgment was void.