Response or Comment
On March 6th, 1917, the Supreme Court of the United States, in the case of McDonald v. Mabee, reversing the decision of the Supreme Court of Texas, in 175 S. W. 676, held that a judgment in foreclosure proceedings in which the defendant was served only by publication did not merge the cause of action so as to bar a suit on the original notes for the balance unpaid by the sale of the mortgaged property on the foreclosure, although the statute of the state declared such service sufficient to give jurisdiction in personam, and the defendant was a citizen of the state and bound by the law so far as it was constitutional. The only case in the United States squarely sustaining the Texas decision on similar facts, so far as the writer is aware, is the often cited case of Henderson v. Staniford (1870), 105 Mass. 504, 7 Am. Rep. 551, in which it was held that action on the original cause was barred by the plaintiff recovering a judgment in a suit in California, where the parties resided, and in which the defendant was served only by publication. The court said that if the service so made was defective the defendant could waive the defect, and did so by urging the judgment as a defence. It is no doubt true that a defendant can waive service by appearing in the suit, as is done every day; but this defendant did and proposed no such thing; and no appearance by him even if made could cure the defect unless such appearance were entered before judgment, so as to confer jurisdiction on the court to render the judgment. That a judgment recovered by such service was no bar, and was not available as a defence against a new action on the original cause, had, at the time this decision was rendered, been held in other states. Whittier v. Wendell (1834), 7 N. H. 257; Middlesex Bank v. Butman (1848), 29 Me. 19. Thus considered, the decision of the Supreme Court of the United States in McDonald v. Mabee would seem to affirm a doctrine sufficiently clear on principle to require neither proof nor precedent to support it, were it not for the decisions to the contrary cited. But these decisions are not so contrary as they seem; for they wete rendered on the assumption that such a service gives jurisdiction, and it is in that regard that the present case is of the greatest interest.
Rood, John R. (1904-1918). "What Service Gives Jurisdiction in Person." Mich. L. Rev. 15 (1917): 493-7.