Texas Law Review, Volume 95, Number 6, May 2017 Page: 1,292
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Texas Law Review
strictly and properly in rem, and in which the thing condemned is first seized
and taken into the custody of the court. '311 A state might skip attachment
pursuant to statute when the case was 'substantially, a proceeding in rem,
determining the ownership of specific property without leaving the defendant
'personally bound. '312 But Mitchell's judgment had let him execute against
whatever property he could find-and a judgment in rem could not be used,
per international standards, to establish that kind of personal debt.313
To Justice Hunt, in dissent, the timing of attachment was 'a matter not
of constitutional power, but only 'of detail. 314 If Oregon had full power
over Neff's land, why care about when the writ issued? Some cases (and
state statutes) agreed with Hunt;315 but other cases agreed with Justice
Field,316 who may have had the better of the argument. It was black-letter
law that a judgment without jurisdiction was void, not merely voidable.317 So
the presence or absence of jurisdiction couldn't depend, as Oregon law would
have it, on property to be named later--"upon facts to be ascertained after
[the court] has tried the cause and rendered the judgment.'318 To Field,
311. Hollingsworth v. Barbour, 29 U.S. (4 Pet.) 466, 475 (1830) (quoting the decision below,
of which the court 'unanimously approve[d],- see id. at 470).
312. Boswell's Lessee v. Otis, 50 U.S. (9 How.) 336, 348 (1850); see Pennoyer, 95 U.S. at 734
(categorizing actions "to partition real estate, foreclose a mortgage, or enforce a lien' as
'substantially proceedings in rem"); cf Cooper v. Reynolds, 77 U.S. (10 Wall.) 308, 317 (1870)
(describing the statutory attachment of real or intangible property without a physical seizure).
313. See, e.g., Green v. Van Buskirk, 74 U.S. (7 Wall.) 139, 149 (1869) (describing a "manifest"
distinction, 'supported by authority,' 'between using foreign attachment proceedings to establish a
claim against the debtor personally and merely to defend the seizure of the goods attached); id. at
148 ("Of course Green could not sue Bates on it, because the court had no jurisdiction of his person;
nor could it operate on any other property belonging to Bates than that which was attached.");
accord Boswell's Lessee, 50 U.S. (9 How.) at 348; Picquet v. Swan, 19 F. Cas. 609, 612 (Story,
Circuit Justice, C.C.D. Mass. 1828) (No. 11,134); Dearing v. Bank of Charleston, 5 Ga. 497, 513
(1848); Bissell v. Briggs, 9 Mass. (8 Tyng) 462, 469 (1813); Borden v. Fitch, 15 Johns. 121, 142
(N.Y. Sup. Ct. 1818).
314. Pennoyer, 95 U.S. at 738, 748 (Hunt, J. dissenting).
315. See id. at 738-40 (listing statutes); Jarvis v. Barrett, 14 Wis. 591, 594-95 (1861); see also
Tocklin, supra note 10, at 132-34 (defending Hunt's view).
316. See Cooper, 77 U.S. (10 Wall.) at 319 ("Without [seizing or attaching property] the court
can proceed no further "); Webster v. Reid, 52 U.S. (11 How.) 437, 460 (1851) (describing
certain judgments as "nullities, 'because there was no 'attachment or other proceeding against the
land, until after the judgments"); Boswell's Lessee, 50 U.S. at 348 (limiting the effect of in rem
judgments to "property of the defendant, within the jurisdiction of the court"); see also Oakley,
supra note 20, at 679-83 (defending at length the strength of authority on this point).
317. Elliott v. Lessee of Peirsol, 26 U.S. (1 Pet.) 328, 340 (1828); Filling the Void, supra note
145, at 164.
318. Pennoyer, 95 U.S. at 728 (majority opinion). Compare Borchers, supra note 1, at 40
(arguing that Pennoyer was really a case about state law, as Justice Field "construed the Oregon
Code to allow for personal jurisdiction only in accordance with the territorial principles"), with
Pennoyer, 95 U.S. at 720 (construing Oregon's damage cap to limit recoveries against absent
property owners "to the extent of such property" at the time of suit, but not as limiting courts'
jurisdiction "only [to] such property,' and thereby permitting ordinary money judgments "'having
no relation to the property'' so long as they didn't exceed the determined amount), and id. at 7331292
[Vol. 95:1249
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Texas Law Review Association. Texas Law Review, Volume 95, Number 6, May 2017, periodical, June 2017; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth903368/m1/116/?q=green+energy: accessed July 18, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.