¶1
¶2(Concurring in result, but dissenting as to some of the language used.) — On page three of my learned associate’s opinion - it is in substance, if not literally stated, that notice to the defendant, a non-resident, by publication, gave the circuit court of Oregon county £<as much jurisdiction over the persons of non-residents upon publication regularly made, as if they were personally served with process. ’ ’
¶3While, if read in connection with the facts of this particular case, which it should he, there would be no-grounds for misunderstanding, but often both the bench and bar give effect to the general language used by the court, regardless of the limitations which should accompany the same, as shown by the facts of the case when carefully read.
¶4Now, the truth of the matter is, that in the case of Brooks vs. the plaintiff here and others, referred to by my learned brother, in this case, was nothing more or less than a proceeding in rem to quiet title (which did not require, in that case, personal service), nor did it give the circuit court of Oregon county jurisdiction over the person of Shemwell, one of the defendants there and the plaintiff here, as that word is generally used in legal parlance. He was simply notified to appear, if he saw proper to so do, and defend that case; but if he deemed it wise to remain away and let judgment go by default against the res — the land — then the courts of this State, at least, will never again give him another opportunity to litigate the questions involved in such default case.
¶5The question as to what effect has a judgment rendered by default against a non-resident defendant upon publication, has attracted the attention not only of the courts of this State, but of many, if not all of the courts of last resort in most of the other States and of the-*274United States. While there is a great conflict among them, yet, if critically read and considered, I believe the greatest confusion among them has grown out of the fact that guarded language has not at all times been used in dealing with the question of jurisdiction acquired over the person of non-residents by publication, and the character of judgment (the incident thereof) that may or may not be rendered thereon. If the decree is to affect the res only, then it is valid, that is, if it imposes no personal obligations upon the nonresident over and above debarring him of any future right to litigate the questions involved in that ease, affecting the res; but if the judgment should go further and impose any personal obligation upon or demand of any kind against the defendant therein, then under both the State and Federal constitutions that excess would be absolutely null and void; and may be attacked collaterally or otherwise. '
¶6With the limitations herein suggested I fully concur in Brother Bond's opinion.