82

FEDERAL REPORTER.

interested in the controversy. The representative character of a party does not affect his right of removal. It depends upon his citizenship alone, without regard to that of those whom he represents, or of those who are interested in the controversy, but are not parties to the record. Mar8haU v. Railroad 00., 16 How. 314; Knapp v. Railroad (h., 20 Wall.

117.

PALMER v. McCORMICK and others.

(Clz'rlJuit Oourt. No IJ. I01Ca, 1.

w: IJ.March

1, 1887.)

NON-REI!IIDENTS-SERVICE ON; BY PuBLICATION-NEWSPAPER WITH "PATENT mSIDE"-WHERE "PRINTED."

In case of a local paper made up partly of a "patent inside," printed in an· other state, the paper IS "printed' in the county where it is issued, within the meaning of a statute regulating publication of notice in actions nonresidents.

2.

SAME,-DEFENDANT COMING INTO STATE-EFFECT.

The to have service by publication on a non-resident defendant is not defeated by the fact that such defendant is in the habit of coming into the state as often as once in two weeks. ' The affidavit for publication may, under the Iowa statute, be made by an attorney, and is not insufficient for not containing the,words, "The State of I01Ca. - - OountY-88.· " if it clearly appears from it in what court, state. and county the case is pending. ' The fact, that a mortgagor's failure to redeem from the mortgage, and.from the foreclosure thereof, was caused by his misfortunes. resultin&, from, the ..grasshopper 'plague, " held not ground for relief in equity, as agalDst'8 .,alid legal title under the foreclosure.

8.

SAME-AFFIDAVIT-FoRM.

4.

MORTGAG.Bl--FoRECLOSURE-RELIEll' INEQUITy-MISFORTUNES OF MORTGAGOR.

In Equity. Suit to redeem from mortgage, and to, set aside decree of foreclosure.' to amended bill. J., W:, for complainant. Baily, Osbprne &: Peters, for defendants., SHIRAS, J. This cause has already been before the court upon a demurrer to thebillj the main question presented thereby being that of the jurisdiction of the state court to render a decree foreclosing a mortgage on realty within the jurisdiction of the court, the mortgagor being a nonresident of the state. and the only notice given of the pendency of the suit being by a publication made according to the provisions of the shlte statute. It was held that the court had jurisdiction to render such a decree, the proceeding being practically in rem. See opinion 28 Fed. Rep. 541. In support of the conclusion therein reached, see case of I!'reeman v. Alderson, 7 Sup.· Ct. Rep. 165. Complainant has now amended his bill, setting up other facts which he claims defeat the de.. {lree of foreclosure, and the sale made in pursuance thereof; and to the bill as amended defendants again demur, and counsel have very fully the questions thus presented.

PALMER V. !ll'CORMICK.

83

It is· averred in the bill that the notice of the pendency of the foreclosure suit in the slate court was published in the Spirit Lake Beacon; that this paper was not wholly printed and published in Dickinson county, Iowa; that it was owned by J. H. Smith and A. B. Funk, who resided and had their only pmceof business at Spirit Lake, Dickinson county, Iowa; that one-half of said paper was printed in Dickinson county, and the other half in Illinois; or, in other words, the paper was made up ofa "patent inside" printed in Chicago, the outside being printed at Spirit Lake, and from thence i1istributed to its patrons. Section 2619 ofthe Code of Iowa provides that "the publication must be made by pnblishing the notice required in section 2599 of this chapter four consecutive weeks in some newspaper printed in the county where the petition is filed, and, if there be none printed in such county then in such paper printed at the next nearest county of this state; which paper shall, in either case, be determined by the plaintiff or his attorney." On behalf of complainant, it is contended that, under the provisions of this section, a paper gotten up as was the Spirit Lake Beacon is not printed in the county wherein it is issued, and that a notice published therein is not sufficient to give the court jurisdiction to render a decree of foreclosure; and in support of this contention is cited the case of Cooke v. 2hllman, 40 Iowa, 133. All that is decided in that case is that the 'newspaper in which the publication is made must be printed in the county wherein the suit is brought, or, if there be none such, then the notice must be published in a newspaper printed in the next nearest county. What is meant by "printed" is not determined or discussed, and hence the case throws no light upon the point now presented. Counsel for complainant does not in his argument enlighten us upon what he deems to constitute printing a newspaper, further than to aver that the statute is plain, clear, and concise, and needs no construction further than to hold that,if it is averred that the paper was partly or one-half printed in Dickinson county, and one-half in Illinois, that is equivalent to showing that it was not printed in Dickinson county. It is apparent, however, that the meaning of the statute is not so clearly expressed as to avoid the necessity of construction; or, rather, the statute does not attempt to define what is meant by the word "printed," as therein used, and its meaning is therefore to be sought in the light of the context and of the object and purpose of the statute. When the sheets of paper, with the outside in blank, were received at the office of the Spirit Lake Beacon, it could not be fll;irly said that they were then parts of the newspaper known by the name of the Spirit Lake Beacon. That which conferred upon these sheets the characteristics which converted them into copies of the Spirit Lake Beacon was thfl work done at Spirit Lq,ke. The statute does not declare that the whole of the work neceaessary to print the paper must be done in the county. The object of requiring the notice to be published in a paper printed in the wherein the action is brought is to secure notice to the parties in interest, upon the theorythatthey will be more likely to see the pf;i.per published in the' county wherein their property is situated, or, if they have an agent rep-

84

. FEDERAL REPORTER.

resenting their interests, he will probably be a resident of the county, and hence be more likely to see the notice thus published. Would the fact that the Spirit Lake Beacon had what is termed ll. "patent inside," printed in Chicago, in any way tend to defeat the object of publishing the notice therein? According to the theory of complainant, the notice in the foreclosure suit ought to have been published in a paper printed in Webster county, yet it is clearly apparent that parties interested in lands in Dickinson county would be much more likely to examine the columns of the Spirit Lake Beacon for notices affecting their interests than those ofa paper printed in Webster county. It being true, then, that the Owners of the Beacon lived at Spirit Lake, had their sale place of business thereat, and that the portion of the paper which identified it .and made it the Spirit Lake Beacon was printed at Spirit Lake, it must be held that the paper known as the Spirit Lake Beacon was in fact printed in Dickinson county, and that the publication of the notice therein wag. a sufficient compliance with the provisions of section 2619 {)f the Codeta confer upon the court jurisdiction of the foreclosure proceedings. , It is also averred in the amended bill that complainant, when the foreclosure suit was brought, resided in Minnesota, but that he was frequently in Dickinson county, coming to Spirit Lake as Often as once in two weeks,and that it was therefore possible to obtain perSonal service upon him· in the state. When the suit in foreclosure was filed, the Com'plainant and his wife, who were the defendants therein, were residents <>f Minnesota,' andJ unless gifted with unusual foresight,:it would be impossible for C. H. McCormick & Bro. to know whether these parties would or would not visit Iowa so that service could be had upon them. If, at the time the affidavit for publication wasmade,they were not in Iowa, service could not be made upon them in the state; and, as they were not residents of the state, the bare possibility that they might visit the state would not defeat the right to obtain service by pubHcation. It also urged that the affidavit for publication was made 'by an attorney, and is informal, because it does not contain the words, "The State of Iowa, Dickirtl80n Cownty-88;" In the case of Banta v. Wood, 32 Iowa, 469, it is ruled that an attorney' for the party has authority to make the requisite affida'lrit under the statute, and the form thereof clearly describes the case in which it is made, the court, state and county, in which the suit is pending, and the officer before whom it is made, towit, the clerk of 1he court. It cannot be held insufficient simply because it may be somewhat informal. Counsel for complainant discusses at some length the question of the statute of limitations, as applicable to the right to redeem from a mortgage, or to the right to attack a void judgment. These questiQns do not arise in thie case. The allegations of the bill fail to show that the decree of for.ec1osure is void, and, if it is not, then the sale based thereon was valid, and thereby the right to redeem from the mortgage was terminated, leaving simply the statutory time for redemption from the sale. By the express provisions of the statute, .the complainant was allowed

NICKERSON 'II.

& 9. F. R. CO.

85

two years in which to appear in the foreclosure suit, service being by publication only; yet he permitted this time to elapse, though he doubtless well knew that the decree had been entered. The bill fails to set forth any fact or facts which show that the state court had not jurisdiction of the foreclosure proceedings. The decree therein cannot be held void, and, being valid, the sale made in pursuance thereof ripened into a title, which has passed to the defendant Crandall. That the failure to redeem within the proper time was caused by the misfortunes of complainant, resulting from the "grasshopper plague," may be true, but that is a misfortune of which the consequences should not now be visited upon the defendants, who had no part or lot therein. Courts of equity cannot alone base a decree against a defendant upon a misfortune of the complainant. If a legal title is vested in It defendant, as there is in this cause, he cannot, be deprived thereof, save upon some ground which affects him, or shows that it would be inequitable or for him to retain his legal advantage against the superior equity of the opo. posing party. The state of facts set forth in the bill as amended fails to show a ground' for bolding the title of the defendant void in lll-w, and likewise fails, to sliow a suffioient. why a court oJ equity should interpose to, de-; feat a title which has been allowed to remain undisturbed for eight years. The demurrer to bill is therefore sustained, anq same will be dismissed at cost of complainant. ..

NICKERSON

and others v.

ATCHISON,

T: & S. F. R. Co. and others.l

(Oireuit Oourt, D. KaMa8. June, 1880.)

1.

EQUITY -

This court will not t,akecognizance. of a case in equity, in which parties upon a statement of facts, and stIpulate that the court shall take jurisdIction, try the cause, and render decree without pleadings. 2., SA 'IE-PRACTICE IN STATE COURTS-COMPo LAWS KAN. CB. 80. , 'ihe statute of Kansas, authorizing such a proceeding in the courts of that state, confers no jurisdiction upon this court, sitting as a federal court of equity, nor does it change the chancery practice in this court in any respect. (Syllabu8 by the Oou.rt.)

PLEADING-REv. ST. U. S. § 918.

PRACTICE IN' UNITED STATES CIRCUIT -

AGREED FACTS WITHOUT

In Equity. Roas Burn8 and A. A; Hunt, for plaintiffs. Goo. R. Peck, for defendants.
McCRARY, J. A stipulation has been filed, signed by the parties to this controversy I setting forth an agreed statement of facts, and consent-

iThis case was inadvertently overlooked when filed, and is now published at the re.quest ora subscriber. See 17 Fed. Rep. 408. .' . .