Marx v. Ebner

Background

A mortgage holder sued to foreclose on land in the District of Alaska. The defendants were a mining and milling company organized in Oregon and an individual named Farrell who lived in Portland, Oregon. The complaint’s record shows an attorney’s affidavit about the defendants’ nonresidence, a U.S. marshal’s return saying a diligent search failed to find them, and a judge’s order directing publication of the summons in a Juneau newspaper, followed by a foreclosure decree and sale when the defendants did not appear.

Reasoning

The key question was whether the court had enough proof that the defendants could not be found after due diligence so it could order notice by publication. The Court relied on the attorney’s affidavit that the company had no agent in Alaska and that Farrell lived in Portland, the marshal’s endorsed certificate of diligent search, and the mailing of the complaint copies. The Court held these facts together allowed a reasonable inference that due diligence had been used, and that the public officer’s return carried some presumption that he had done his duty. Citing earlier decisions, the Court explained why the record here met the necessary showing and therefore the judge’s publication order and the resulting foreclosure sale were valid.

Real world impact

The decision affirms that where an affidavit shows nonresidence, personal service cannot be made, and an officer certifies a diligent search, a court may order publication and the foreclosure sale can convey title. Other objections to the decree were considered and rejected, so the lower court’s judgment was affirmed.