record must show a compliance with the pro- of an undivided half to his law partner, also In the supplemental complaint filed in the action of Gray v. Eaton and others, and in the original complaint of Eaton v. Palmer, the absence of Franklina from the state and her residence in another state are alleged. The record in the two actions, and of course in the consolidated action, shows that she was thus beyond the reach of the process of the court. All presumption of jurisdiction over her person by the district court, which otherwise might have been indulged, is thus repelled, and it remains for the defendant to show that by the means provided by statute such jurisdiction was obtained. The statute provides, in case of absent and non-resident defendants, for constructive service of process by publication. It requires an order of the court or judge before such publication can be made; it designates the facts which must exist to authorize the order, the manner in which such facts must be made to appear, the period for which publication must be had, and the mode in which the publication must be established. These provisions, as already stated, must be strictly pursued, for the statute is in derogation of the common law. 373*] And the order, which is *the sole authority for the publication, and which by statute must prescribe the period and designate the paper in which the publication is to be made, should appear in the record with proof of compliance with its directions, unless its absence is supplied by proper averment. If there is any different course of decision in the state it could hardly be expected that it would be followed by a Federal court, so as to cut off the right of a citizen of another state from showing that the provisions of law, by which judgment has been obtained against him, have never been pursued. The provisions mentioned were not strictly pursued with respect to the infant defendant. There were various omissions and irregularities in the proceedings taken which prevented the jurisdiction over her from ever attaching. It is unnecessary to specify them, as the effect of some of them has been the subject of judicial determination by the supreme court of the state. That court has adjudged that no sufficient service was ever made upon her, and that, until such service, no guardian ad litem could be appointed for her; and that adjudication is conclusive. It follows that the decree against her, and all proceedings founded upon such decree, so far as her rights are concerned, necessarily fall to the ground. Judgment without jurisdiction is unavailing for any purpose. *In many of the states, it is the law [*374 The The same doctrine prevails in Missouri. "The restitution," says the supreme court of that state, "to which the party is entitled upon the reversal of an erroneous judgment, is of everything which is still in the possession of his adversary. Where a man recovers land in a real action, and takes possession or acquires title to land or goods by sale under *execution, [*375 and the judgment is afterwards reversed, so far as he is concerned his title is at an end, and the land or goods must be restored in specienot the value of them, but the things themselves. There is an exception where the sale is to a stranger bona fide, or where a third person has bona fide acquired some collateral right before the reversal." Gott v. Powell, 41 Mo. 416. The same doctrine is asserted in McJilton v. The decree being thus reversed, the title acquired by Page, the purchaser at the commis- Love, by the supreme court of Illinois, 13 Ill. sioner's sale, falls with it. He was one of the 486, and is there stated to be well established attorneys of the plaintiff, Gray, and the law by authority, and numerous cases in support imputes to him knowledge of the defects in the of the position are cited. In New York, the proceedings, which were taken under his direc- doctrine would seem to be settled in the same tion and that of his copartners, to obtain serv-way. Wilson v. Caldwell, 1 Cow. 644. As this ice upon the infant. The conveyance by him case must go back for a new trial, this position ANN can be more fully considered than it appears | tion, conferred by Congress upon the territorial to have been by the court below. courts by the organic act. The defendant in this case acquired her interest, one half, by devise from the purchaser, Page; and the other half by conveyance from one of the attorneys, years after the reversal of the decree. It follows that the judgment must be reversed, and the cause remanded for a new trial, and it is so ordered. 13 Stat. at L. 85; Dunphy v. Kleinschmidt, 11 Wall. 610, 20 L. ed. 223. It distinctly appears by the record, that in this case, legal and equitable claims were blended together, and that the cause was tried in the court below, partly as an action at law, and partly as a proceeding in chancery. This was clearly an error, as this court has repeatedly decided. The act of Congress organizing Mr. Justice Davis did not sit in the case, the territory of Montana, in conferring jurisdic and took no part in its decision. tion upon the supreme and district courts of the territory, makes a distinction between suits at common law and in equity, to the same ef JAMES HORNBUCKLE et al., Plffs. in Err., fect as is made by the laws of the United States v. JOHN TOOMBS. (See S. C. 18 Wall. 648-657.) Cases overruled-territorial courts, practice in-causes of action, when united. 1. Noonan v. Braley, 17 L. ed. U. S. 278; Orchard v. Hughes, 17 L. ed. U. S. 561; and Dunphy v. Kleinschmidt, 20 L. ed. U. S. 223, overruled. 2. The practice, pleadings, and forms and modes of proceeding of the territorial courts, as well as their respective jurisdictions, subject to conditions in the organic act of the territory, were intended to be left to the legislative action of the territorial assemblies, and to the regulations which might be adopted by the courts themselves. 3. Claims at law and claims in equity can be united in one action in the territorial courts, when authorized by territorial law. [No. 139.] This action was brought in the district court for the third judicial district of the territory of Montana, Apr. 13, 1870, by John Toombs against James Hornbuckle and Samuel Marshall, to establish an alleged title to an appropriation of water for the purposes of irrigation; to restrain the diversion of said water, and for damages on account of its alleged diversion from the plaintiff's ditches. Judgment in the district court was for the plaintiff. An appeal was taken by the defendants July 29, 1870, to the supreme court of the territory, where the judgment and decree below were affirmed, Jan. 16, 1871, whereupon the defendants sued out this writ of error. The case further appears in the opinion. Mr. Robert Leech, for plaintiffs in error: 1. This case was tried in the court below, in pursuance of an act of the legislative assembly of Montana territory, passed Dec. 3, 1867. Legal and equitable claims were blended together, and the case was tried partly as an action at law, and partly as a proceeding in chancery. 2. The chief subject-matter of this suit is of chancery jurisdiction, requiring equitable, as distinguished from legal, relief. It was tried by a jury, as a case at common law, and the judgment and decree were pronounced by the judge, as mere conclusions of law upon the facts found by the jury, and not as the result of his own judgment upon evidence submitted to him, and contained in the record. The proceedings are wholly erroneous, in that they entirely ignore the distinction between the chancery and common law jurisdic in clothing the Federal courts with jurisdiction. Thompson v. R. Co. 6 Wall. 137, 18 L. ed. 767; and, see, Robinson v. Campbell, 3 Wheat. 212; Noonan v. Braley, 2 Black, 509, 17 L. ed. 281; Bennett v. Butterworth, 11 How. 674; Payne v. Hook, 7 Wall. 430, 19 L. ed 261. Messrs. M. Blair, F. A. Dick and N. Wilson, for defendant in error. Mr. Justice Bradley delivered the opinion of the court: defendant in error, against the plaintiffs in erThis was an action brought by Toombs, the ror, in the district court of the territory of Montana, for damages caused by the diversion of a stream of water, by which the plaintiff's farm was deprived of irrigation, and for an adjudication of his right to the stream and injunction against further diversion. The action was framed and conducted in accordance with the practice as established by the legislative assembly of the territory, of which the following are the material provisions: "Section 1. There shall be in this territory but one form of civil action, for the enforcement or protection of private rights and the redress or prevention of private wrongs." "Sec. 2. In such action, the party complaining shall be known as the plaintiff, and the adverse party as the defendant." "Sec. 38. The only pleadings on the part of the plaintiff shall be the complaint, demurrer or replication to the defendant's answer; and the only pleadings on the part of the defendants shall be a demurrer to the complaint, or a demurrer to the replication, or an answer to the complaint." "Sec. 155. An issue of fact shall be tried by a jury, unless a jury trial is waived or a reference is ordered as provided in this act." The case was tried by a jury who found for the plaintiff, assessed his damage at one dollar, and decided that he was entitled to seventy inches of the water. Upon this verdict the court gave judgment and awarded an injunetion as prayed. The only errors assigned are based on the intermingling of legal and equitable remedies in one form of action. Such an objection would be available in the circuit and district courts of the United States. The process act of 1792 (1 Stat. at L. 275) expressly declared that in suits in equity, and in those of admiralty and maritime jurisdiction, in those courts, the forms and modes of proceeding should be according to the principles, rules and usages which belong to courts of equity and to courts of admiralty respectively, as contradistinguished from courts of common law, subject to such alterations and additions as the said courts respectively should deem expedient, or to such regulations as the supreme court should think proper to prescribe. The Supreme Court, in prescribing rules of proceeding for those courts, has always followed the general principle indicated by the law. Whether the territorial courts are subject to the same regulation is the question which is now fairly presented. In the case of Orchard v. Hughes, 1 Wall. 77, 17 L. ed. 561, a majority of this court was of opinion that the territorial courts were subject to the same general regulations in equity cases which govern the practice in the circuit and district courts. That was the case of a foreclosure of a mortgage in the territorial court of Nebraska, and the court, under a territorial law, not only decreed a foreclosure and sale of the mortgaged premises, but gave a personal decree against the defendant for the deficiency. We had decided in Noonan v. Braley, 2 Black, 499, 17 L. ed. 278, that under the equity rules prescribed for the circuit and district courts, such a decree could not be made. The majority of the court now applied the same rule in the case of Orchard v. Hughes, although it was 653*] decided by a territorial court. *Follow ing out the principle involved in that decision, we subsequently, in the case of Dunphy v. Kleinschmidt, 11 Wall. 610, 20 L. ed. 223, reversed a judgment of the supreme court of Montana, on the ground that the case (being in nature of a creditor's bill, filed to reach property which the debtor had fraudulently conveyed) was a clear case of equity, whilst the proceedings therein exhibited no resemblance to equity proceedings, there being a trial by jury, a verdict for damages, and a judgment on the verdict. On a careful review of the whole subject we are not satisfied that those decisions are founded on a correct view of the law. By the 6th section of the organic act of the territory of Montana (13 Stat. at L. 85) with which that of Nebraska substantially agreed, it was enacted, "that the legislative power of the territory shall extend to all rightful subjects of legislation consistent with the Constitution of the United States and the provisions of this act." By the 9th section it was provided "that the judicial power of said territory shall be vested in a supreme court, district courts, probate courts, and in justices of the peace," and that "the jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts and justices of the peace, shall be limited by law, Provided," that "the said supreme and district courts respectively shall possess chancery as well as common law jurisdiction." Now, here is nothing which declares, as the process act of 1792 did declare, that the jurisdictions of common law and chancery shall be exercised separately, and by distinct forms and modes of proceeding. The only provision is, that the courts named shall possess both jurisdictions. If the two jurisdictions had never been exercised in any other way than by distinct modes of proceeding, there would be ground for supposing that Congress intended them to be exercised in that way. But it is well known that in many states of the Union the two jurisdictions are commingled in one form of action. And there is nothing in the nature *of [*654 things to prevent such a mode of proceeding. Even in the circuit and district courts of the United States the same court is invested with the two jurisdictions, having a law side and an equity side; and the enforced separation of the two remedies, legal and equitable, in reference to the same subject-matter of controversy, sometimes leads to interesting exhibitions of the power of mere form to retard the administration of justice. In most cases it is difficult to see any good reason why an equitable right should not be enforced or an equitable remedy administered in the same proceeding by which the legal rights of the parties are adjudicated. Be this, however, as it may, a consolidation of the two jurisdictions exists in many of the states, and must be considered as having been well known to Congress; and when the latter body, in the organic act, simply declares that certain territorial courts shall possess both jurisdictions, without prescribing how they shall be exercised, the passage, by the territorial assembly, of a code of practice which unites them in one form of action, cannot be deemed repugnant to such organic act. A clause in the 13th section of the act, however, has been referred to, by which it is declared "that the Constitution, and all laws of the United States which are not locally inapplicable, shall have the same force and effect within the said territory of Montana as elsewhere in the United States;" and it is argued that by virtue of this enactment, all regulations respecting judicial proceedings which are contained in any of the acts of Congress, are imported into the practice of the territorial courts. But this proposition is not tenable. Laws regulating the proceedings of the United States courts are of specific application, and are, in truth and in fact, locally inapplicable to the courts of a territory. There is a law authorizing this court to appoint a reporter. In one sense this law is not locally inapplicable to the supreme court of the territory; but in a just sense it is so. The law has a specific application to this court, and cannot be applied to the territorial court without an evident misconstruction of the true meaning *and intent of [*655 Congress in the clause of the 13th section above referred to. That clause has the effect, undoubtedly, of importing into the territory the laws passed by Congress to prevent and punish offenses against the revenue, the mail service, and other laws of a general character and universal application; but not those of specific application. The acts of Congress respecting proceedings in the United States courts, are concerned with, and confined to, those courts, considered as parts of the Federal system, and as invested with the judicial power of the United States expressly conferred by the Constitution, and to be exercised in correlation with the presence and jurisdiction of the several state courts and governments. They were not intended as exertions of that plenary municipal authority which Congress has over the district of Columbia and the territories of the United States. They do not contain a word to indicate any such intent. The fact that they require the circuit and district courts to follow the practice of the respective SUPREME COURT OF THE UNITED STATES. DEC. TERM, time to establish such regulations on this, as Dissenting, Mr. Justice Clifford. dissenting (entitled in this and the two follow- and took no part in the decision. LEWIS H. HERSHFIELD et al., Appts., v. JOSEPH GRIFFITH et al. 1. In a territory, when authorized by its law, a case of equity jurisdiction may be tried by a jury as an action at law. state courts in cases at law, and that they supply no other rule in such cases, shows that they cannot apply to the territorial courts. As before said, these acts have specific application to the courts of the United States, which are courts of a peculiar character and jurisdiction. Whenever Congress has proceeded to organize a government for any of the territories, it has merely instituted a general system of courts therefor, and has committed to the territorial assembly full power, subject to a few specified or implied conditions, of supplying all details of legislation necessary to put the system into operation, even to the defining of the jurisdiction of the several courts. As a general thing, subject to the general scheme of local government chalked out by the organic act, and such special provisions as are contained therein, the local legislature has been intrusted with the enactment of the entire system of municipal law, subject, also, however, to the right of Congress to revise, alter and revoke at its discretion. The powers thus exercised by the territorial legis656*] latures are nearly as extensive *as those exercised by any state legislature, and the jurisdiction of the territorial courts is collectively co-extensive with and correspondent to that of the state courts-a very different juris-Practice in territorial courts-equitable relief. diction from that exercised by the circuit and district courts of the United States. the territorial, like the state courts, are investIn fine, ed with plenary municipal jurisdiction. It is true that the district courts of the territorial legislature. ritory are, by the organic act, invested with the same jurisdiction, in all cases arising under the Constitution and laws of the United States, as is vested in the circuit and district courts of the United Stater; and a portion of each term is directed to be appropriated to the trial of causes arising under the said Constitution and Thompson, in the third judicial district court This action was commenced by Griffith and laws. Whether, when acting in this capacity, of Montana territory, against Starr & Herman, the said courts are to be governed by any of the to foreclose a mortgage on a quartz mill. Starr, regulations affecting the circuit and district | only, filed an answer denying the allegations of courts of the United States, is not now the ques- the complaint. Subsequently, the present aption. A large class of cases within the juris-pellants filed a petition to intervene, alleging diction of the latter courts would not, under that the defendants were largely indebted to this clause, come in the territorial courts, them, and that they had executed and delivered namely: those in which the jurisdiction depends to the petitioners a deed of the property deon the citizenship of the parties. Cases arising scribed in the complaint, and asked that they under the Constitution and laws of the United might be declared to be the prior incumbrancers States would be composed mostly of revenue, of the premises. The complainants filed an anadmiralty, patent and bankruptcy cases, prose-swer to the petition of the interveners, denying cutions for crimes against the United States, and prosecutions and suits for infractions of the laws relating to civil rights under the XIVth and XVth Amendments. To avoid question and controversy as to the modes of proceeding in such cases, where not already settled by law, perhaps additional legislation would be desirable. From a review of the entire past legislation of Congress on the subject under consideration, our conclusion is, that the practice, pleadings and forms and modes of proceeding of the territorial courts, as well as their respective jurisdictions, subject, as before said, to a few express or implied conditions in the organic act itself, were intended to be left to the legislative action of the territorial assemblies, and to the regulations which might be adopted by the courts themselves. Of course, in case of any 657] difficulties arising out of this state of things, Congress has it in its power at any 968 2. Equitable as well as legal relief may be pursued by the form of action prescribed by the ter [No. 208.] Submitted Jan. 27, 1874. Decided May 4, 1874. the allegation. The case was submitted for trial by a jury, under directions by the court to answer the second interrogatory submitted, and also to find a general verdict between the plaintiffs and the interveners, the defendants setting up no claim in this suit, leaving the matter to the plaintiffs and the interveners to the plaintiff's, and a decree having been ensettle between themselves. The jury found for tered, Hershfield and Hanauer appealed to the supreme court of the territory, where the decree was affirmed. They then brought the case to this court and assigned for error: tories and the cause, the subject-matter where- of said jury, and not as the result of the chan- 3. The blending of common law and equity proceedings in the trial and conduct of said cause. 4. The remanding of the jury with instructions to find a general verdict between the plaintiffs and the interveners. 5. The entry of said decree in favor of appellees, by which their claim was preferred to appellants'. Messrs. J. Hubley Ashton and N. Wilson, for defendant in error. *Mr. Justice Bradley delivered the [*661 opinion of the court: Mr. Lyman Trumbull, for appellants: The questions in this case I believe to have been settled by Dunphy v. Kleinschmidt, 11 Wall. 610, 20 L. ed. 223. See, also, section 13, Organic Act Establishing the Territory of Montana, 13 Stat. at L. 91; also, same act, sec. 9; Bennett v. Butterworth, 11 How. 669; Robinson v. Campbell, 3 Wheat. 212; Noonan v. Braley, 2 Black, 500, 17 L. ed. 278; Thompson v. R. Co. 6 Wall. 135, 18 L. ed. 765. Messrs. J. Hubley Ashton and N. Wil- the plaintiff, Bilsland, the now defendant in erson, for appellees. Mr. Justice Bradley delivered the opinion of the court. The only point made in this case is, that being one of equity jurisdiction it was tried by jury as an action at law. This being so it would seem that, under the VIIth article of Amendments to the Constitution, it should have been removed by writ of error and not by appeal. 659*] But that aside, *we have just decided in Hornbuckle v. Toombs, ante, 966, that equitable as well as legal relief may be pursued by the form of action prescribed by the territorial legislature. There is no complaint that this was not done, or that substantial justice was not administered between the parties. Judgment affirmed. This was a proceeding in the territorial district court, to enforce a mechanic's lien against the International Hotel, in the town of Helena, Montana, and the lot on which it is situated, by a sale of the same to pay the plaintiff's claim and to foreclose the liens and claims of all other parties. The building of the hotel was commenced as early as May 21, 1869, and one McKillican was employed by the owner to work upon it as foreman from the 8th of May to the 13th of November, and for this labor became entitled to the sum of $1,242.50. He duly filed his lien, and afterwards assigned his claim to ror. Bilsland himself was employed on the building as a carpenter from July to November, 1869, and duly filed his lien for $742.871, the amount due to him. On the 9th of June, 1869, after the building was commenced, the defendant, Davis, now plaintiff in error, alleges that he loaned to the owner of the property $6,792 and received as security therefor, a mortgage on the property, which was duly filed for record on the same day. He contended that he was entitled to priority of payment over the claims of McKillican and Bilsland. The court, a jury being waived, rendered a decree in favor of the plaintiff for his own claim and for that which was assigned to him by McKillican, and directed a sale of the property to pay the plaintiff in preference to other parties, Davis among the number. This decree being appealed to the supreme court of the ter before us on a writ of error. Dissenting, Mr. Justice Clifford, Mr. Justice ritory, was substantially affirmed, and is now Davis and Mr. Justice Strong. [See opinion, ante, 968.] ANDREW J. DAVIS, Piff. in Err., บ. JOHN BILSLAND. (See S. C. 18 Wall. 659-661.) Joinder of actions in territorial courts-mechanic's lien, how enforced-Montana law. 1. In a territory, when authorized by its law. there may be a joinder in one suit of an action of assumpsit for work and labor, with a chancery proceeding to foreclose the equity of redemption. 2. The claim of a mechanic for a statutory lien can be enforced by an assignee by a suit in his own name, by civil practice act of Montana. 3. By the law of Montana, liens secured to the mechanics and material-men have precedence over all other incumbrances put upon the property after the commencement of the building. [No. 141.] Argued Dec. 10, 1873. Decided May 4, 1874. Ν IN ERROR to the Supreme Court of the Territory of Montana. The case is stated by the court. Messrs. Robert Leech and Enoch ten, for plaintiff in error. The plaintiff assigns three errors: First. That the action is a joinder in one suit of an action of assumpsit for work and labor, with a chancery proceeding to foreclose the equity of redemption. This ground of objection having been already fully considered in the case of Hornbuckle v. Toombs, ante, 966, needs no further discussion. Second. That the claim of a mechanic for a statutory lien cannot be enforced by an assignee by a suit in his own name. In answer to this objection, it is sufficient to refer to the 4th section of the civil practice act of Montana, which provides that actions shall be prosecuted in the name of the real party in interest. McKillican had completed his claim by filing his lien before assigning it to the plaintiff. It was perfectly lawful for him to assign his claim. It was not against any principle of public policy to do so. When assigned, the claim really belonged to the plaintiff, and according to the Code he was the proper person to bring suit upon it. Third. The third error assigned is, that the mortgage of the defendant was entitled to priorTot-ity over the claims of the plaintiff, which were not filed till November, 1869, and Bilsland did favor of the assignability of the lien of a mechanic and the right of the assignee to assert his claim in the same manner and to the same extent that the mechanic could. Kerr v. Moore, 54 Miss. 286; Tuttle v. Howe, 14 Minn. 150; Laege v. Bossieux, 15 Note. When a lien or right to a lien is assignable. A laborer's statutory llen is assignable. Murphy v. Adams, 71 Me. 113, 36 Am. Rep. 299. The weight of authority and reasoning is in ANN |