Page:Borden v. State ex rel. Robinson.pdf/46

564 secondly, that if there is no such notice the judgment is absolutely void.

Turning from the decisions of the highest State tribunals I will proceed to examine the decisions of the United States courts; and I think it will be found that these do not conflict with the doctrine as above laid down, but that such as would seem to favor a different doctrine, were in proceedings in rem and stand upon quite different grounds. Thus, in the case of The Mary, which was a proceeding in rem in the Admiralty court, Chief Justice takes the distinction between these and proceedings against the person, and says, "where the proceedings are against the person, notice is served personally or by  publication: where they are in rem, notice is served upon the thing itself."

In the case Voorhees vs. United States Bank, 10 ''Pet. Rep.'' 450, the validity of a sale made under a judgment by attachment came in question. The objection to the validity of the judgment under which the sale was made was that it did not appear that an order of publication had been made as required by the statute giving to the defendant notice. It was argued by Mr. Fox that the proceedings being in rem and not against the person, the seizure of the property was tantamoimt to personal service in a personal action. The court sustained this position and held the judgment although erroneous, not absolutely void. The question is extensively discussed by Mr. Justice who dwells at great length on the importance of protccting purchasers on the faith of judicial sales. But it is a remarkable fact that there is not an authority which he cites, in which the question of notice in a proceeding against the penon is presented. The case cited in 4 Cranch 328, had no relation to judgments. The question was whether an execution issuing before the day allowed by law, was void or voidable. The case of Wheaton vs. Sexton, 4 Wheaton 503, was whether a marshal's sale after the return day was valid or not. The case of Thompson vs. Talmic, 2 Pet. 165, was a proceeding in rem for the partition of land amongst heirs by petition, setting forth all the facts necessary to give the court