Plaintiff, an Ohio corporation, was the lessee of land in Kentucky. It entered into a contract with defendant lessor, a resident of the District of Columbia, to renew the lease. Defendant failed to carry out his agreement, and plaintiff" sued for specific performance of the contract to lease in the United States District Court for Eastern Kentucky, jurisdiction being based on diversity of citizenship. Plaintiff was unable to obtain personal service upon defendant, but obtained service by publication under section 57 of the Judicial Code, which authorizes the court to take jurisdiction and to allow service by publication in "any suit . . .to enforce any . . . equitable . . . claim to . . . real or personal property within the district." Defendant appeared specially and objected to the jurisdiction of the court. Plaintiff appealed from an adverse ruling. Held, that the court is without jurisdiction. This is not an action based upon an equitable claim to-rea! property, but rather seeks only an act by the defendant, i.e. execution of the lease, and is therefore an action in personam. Dan Cohen Realty Co. v. National Savings & Trust Co., (C. C. A. 6th, 1942) 125 F. (2d) 288.
Charles J. O'Laughlin,
FEDERAL COURTS - WHAT IS AN EQUITABLE CLAIM TO REAL PROPERTY WITHIN THE MEANING OF SECTION 57 OF THE JUDICIAL CODE?,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol41/iss2/15