Pennoyer v. Neff

95 U.S. 714 (1877)

Yeazell, p. 77-84

[Special note for anxious 1Ls: Reading and briefing this case is a hazing exercise more than anything else. The current law of personal jurisdiction mostly comes from cases you'll study later (like Shoe and Shaffer). Also, most of the cases you'll read won't use such archaic language. So hang in there! Thanks for visiting!]

Facts: Oh man, here we go…there are these three guys:


Mitchell – Mitchell was an attorney who lived in Oregon. He did work for…


Neff – who didn’t live in Oregon. Neff failed to pay fees to Mitchell, so Mitchell sued him. Neff was served notice of process by printing it in a newspaper in Oregon. He might or might not have been aware that he was being sued, but we presume he probably didn’t read that particular paper, so he probably didn’t know. He never showed up in Oregon or file an answer to the lawsuit or anything like that. “[J]udgement was entered upon his default”. After all this had happened, Neff bought some land in Oregon from the federal government. Mitchell went to the sheriff and was all like, “that bastard, we’ve got him now! Seize that land and sell it and give me the money!” It’s implied that the sheriff took the land without going to court to get the land attached. The sheriff sold the land to…


Pennoyer – who got a sheriff’s deed. The sheriff took the money and gave it to Mitchell.


Now, Neff “reappeared”…I don’t know where, but it seems to imply that he returned to Oregon and found out his land had been sold seemingly under his feet (in his absence). So Neff sued Pennoyer to get the land. Neff was all like, “I’ve got this deed from the government, dude!” And Pennoyer was like “Sheriff’s deed! Read ‘em and weep!”


Procedural Posture: Neff sued Pennoyer [thanks to Ashley from U. Miami for spotting the prior error] in federal court, where the lower court found for Neff due to problems in the way the order of publication was obtained and how the publication was proved. The case went to the Supreme Court on appeal from Pennoyer.


Issues: Definitely issues as opposed to issue.


1.     Is constructive service by publication legal?

2.     Does the state of Oregon have jurisdiction in personam over Neff?

3.     Does the state of Oregon have jurisdiction in rem over Neff, or Neff’s stuff?

1.     Was it appropriate to sell the property before it was attached (seized)?

2.     If the first lawsuit cannot be upheld, does the sale of the property to Pennoyer count?




Main Issue: Was it legal for the state of Oregon to register a judgment against Neff without personal service of process?




1.     A state has exclusive jurisdiction over people and property within its borders.

2.     No state can exercise jurisdiction over people or property in other states.

3.     Judgments in personam without personal service of process shall not be upheld.

4.     Judgments in rem with only constructive service may be upheld.

5.     The “Full Faith and Credit” clause of the Constitution only applies “when the court rendering the judgment had jurisdiction of the parties and of the subject-matter”.


Analysis: The newly enacted Fourteenth Amendment[1] lets the court question “judgments rendered against non-residents without personal service of process” on a new and different basis: you can’t debate somebody’s rights and duties in a court that doesn’t have jurisdiction over them, because that violates due process of law.


Conclusion: The original verdict of Mitchell v. Neff was invalid because the state of Oregon did not have jurisdiction in personam over Neff. Therefore, the judgment shouldn’t have happened and the property should have never been sold. Consequently, the court upheld the decision in Neff’s favor.


Dicta: The court tries to clarify a bunch of stuff to make sure the ruling isn’t applied in ways they don’t want it applied. From Steve we get the idea that the court wants states to be able to declare one of their own residents divorced even if the spouse runs off to another state and doesn’t appear for divorce proceedings. In other words, if I’m a citizen of Oregon and I’m married to Mrs. Shecket and Mrs. Shecket runs off to Ohio, the state of Oregon can declare me officially divorced and not married to Mrs. Shecket, even in her absence and even without personal service of process.


The court also wants the states to be able to force people or companies to have an agent in the state who can take personal service of process. As history progresses, this (I think) ends up being kind of onerous. But overall, the court just seems to say that they want states to be able to continue to regulate business within their own borders.


Terms to look up


In personam

In rem



Notes and Questions



a.      We can only suppose that Neff first became aware of the judgment when he realized that Pennoyer had the land that Neff thought was his own. Otherwise, we’re not told when or if Neff was aware of the judgment against him.

b.     What do we mean by a “telling objection”? Are we asking if constructive service of process is always inadequate? Actually, the court seems to say that Oregon state law says it’s inadequate unless the defendant owns property in Oregon. That makes you wonder how the first judgment slipped past.

c.     The court discussed the objection when it talked about the specifics of Oregon’s statutes on constructive service of process.

2.     The state court could have entered a judgment against Neff if he had either (1) been a resident of Oregon, (2) had voluntarily appeared in Oregon to receive personal service of process, or (3) had owned property in Oregon at the time of the original lawsuit.

3.     Steve says the distinction between power in personam and power in rem doesn’t hold up today.

a.      The Oregon court didn’t obtain in personam jurisdiction over Neff because he wasn’t personally served with process in Oregon. He was a non-resident of Oregon and never showed up when he got sued.

b.     The Oregon court didn’t obtain in rem jurisdiction over Neff because he didn’t own any property in Oregon at the time of the lawsuit. He didn’t own the 300 acres until later.

4.     The three sections of the opinion

a.      Just the facts; make sure you know them.

b.     The principles of personal jurisdiction (this is where these principles first originate)

                                                              i.      Mitchell v. Neff failed to achieve either in personam or in rem jurisdiction.

                                                            ii.      In personam and in rem are mutually exclusive and exhaustive categories.

c.     Here’s the dicta. The court clarifies and narrows some of its statements.

5.     Perhaps the court is arguing that even though the Fourteenth Amendment was not ratified until 1868 it reflected common law at that time. The Fourteenth Amendment also seems to simply restate the Fifth Amendment. I’m not sure what was new in the Fourteenth Amendment. The text suggests that this amendment was “revolutionary”, and if it didn’t apply in 1866, it could be argued the court is applying it inappropriately in this case.

6.     The ruling in Pennoyer claims it is based on the Constitution. Collateral attack applied to Neff in Pennoyer because Neff wasn’t subject to personal jurisdiction in Oregon and never showed up in Oregon during Mitchell’s lawsuit. By not showing up, Neff was able to keep that judgment from being valid and he was able to get back his land when he sued Pennoyer.

7.     A is a resident of Minnesota and B is a resident of North Dakota. B owns some land in Minnesota. A sues B in Minnesota.

a.      Because “the laws of one State have no operation outside its territory”, A cannot personally serve B in North Dakota to appear in Minnesota. The court in Minnesota doesn’t have jurisdiction in personam.

b.     This appears to be collateral attack. B’s appearance in North Dakota doesn’t retroactively give the Minnesota court jurisdiction in personam.

c.     The state of Minnesota has the authority to serve personal process to B when B is within its borders. Once B has received process, the state of Minnesota has jurisdiction in personam over B.

d.     Here the original proceeding in Minnesota is valid, i.e. Minnesota did have jurisdiction in personam, and under the Full Faith and Credit clause North Dakota must enforce the judgment upon B.

e.      If A attaches B’s land before suing B, then Minnesota has jurisdiction in rem over B. B need not be served with personal process in this case, and so A prevails.

f.       If A does not attach B’s land first, Minnesota lacks jurisdiction in rem and so the original judgment is invalid and B prevails.

g.     The court made a specific exception in Pennoyer just for this case. The court said that Minnesota has the authority to say whether or not A is married. I guess in theory North Dakota could consider B still married to A even as Minnesota considers A divorced from B.

h.     Under the rule in Pennoyer, it would seem that Minnesota doesn’t have jurisdiction in personam to get B to pay A alimony and child support.

i.        Whether B was in Minnesota or Wisconsin at the time she was served process is a question of fact, not a question of law. If B was in Wisconsin, then the original judgment is invalid. If B was in Minnesota, the original judgment is valid. I think the court in North Dakota must determine where B was and then rule on whether Minnesota had jurisdiction in personam.

8.     Okay! Colorful characters are good.

9.     Pennoyer’s conceptual scheme:

a.      Power: if a court has in personam jurisdiction, it has the power to take money or impose an injunction on the defendant. If the court has in rem jurisdiction, it has the power to decide that someone else owns the defendant’s property. If you use the land for other purposes or take jurisdiction over other kinds of property, it’s called quasi in rem.

b.     Consent: You might be subject to a state’s jurisdiction, even if you don’t own property in that state and you’re not a resident, if you give consent to it. For example, the state can force non-residents to appoint an agent in the state who can accept service of process. This would allow a state to get jurisdiction over lots of nonresidents in return for letting them do business in the state. This is how states get jurisdiction over corporations doing business within their borders. However, if you’re talking about individuals, the Constitution protects their right to go between states and do business wherever they want. Can a state demand someone to consent to jurisdiction to be able to do something that’s their constitutional right anyway? Sounds like no.

c.     Notice: The “concealed strand”…hmmmm. Notice by personal service in required for in personam jurisdiction, but not required for in rem jurisdiction. If the person is within your borders you can personally serve them process and have power over them. Apparently, the court goes all wrong, according to Steve, when it talks about in rem jurisdiction. The problem is that courts upheld pretty lame notice when the matter was considered in rem.

10. Pennoyer could be considered outdated given modern advancements in transportation and communications. To bring Pennoyer up-to-date, the Supreme Court kept using the concepts of consent and presence.

a.      Consent

                                                              i.      Corporations can be served process in their state of incorporation, and states can establish requirements under which corporations can do business within their borders, and in particular that states can require consent to jurisdiction.

                                                            ii.      With persons, it wasn’t so clear. There emerged something called implied consent.

b.     Presence

                                                              i.      Corporations don’t have a physical existence, so how can you serve them process? The first solution was given by Bank of Augusta v. Earle.

                                                            ii.      Courts later defined presence for corporations as sustaining a certain level of activity in a state.


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[1] Yeazell notes that it was actually enacted after Mitchell’s original suit against Neff.