within its territorial boundaries, except so far as its authority is limited by the constitution and laws of the United States; and the courts of the state, acting within that limitation, have, and may, exercise all the jurisdiction over all persons and things which the constitution and laws of the state confer them. The manner of obtaining such jurisdiction, and the procedure for its exercise, are matters of state legislation.

upon

The legislature of this state has provided that "an action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim": Code Civ. Proc., sec. 738. It has also provided: "Where the person on whom the service is to be made resides out of the state, or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid the service of summons, or is a foreign corporation having no managing or business agent, cashier, or secretary within the state, and the fact appears by affidavit, to the satisfaction of the court, or a judge thereof, and it also appears, by such affidavit, or by the verified complaint on file, that a cause of action exists against the defendant in respect to whom the service is to be made, or that he is a necessary or proper party to the action, such court or judge may make an order that the service be made by the publication of the summons. The order must direct the publication to be made in a newspaper, to be designated, as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, at least once a week; but publication against a defendant residing out of the state, or absent therefrom, must not be less than two months": Code Civ. Proc., secs. 412, 413.

Unless the method of giving notice above prescribed is unreasonable, or is in conflict with some provision of the constitution or principle of natural justice, it cannot be held invalid. In determining the question of its validity, the nature of the action and the effect of the judgment must be considered. While it is true, as a general proposition, that an action to quiet title is an action in equity which acts upon the person, it is also true that the state has power to regulate the tenure of immovable property within its limits, the conditions of its ownership, and the modes of establishing the same, whether the owner be citizen or stranger: United States v. Fox, 94 U. S. 315. While a decree quieting title is not in rem, strictly speaking, it fixes and settles the title to real estate, and to that extent certainly partakes of the nature of a judgment in rem.

But it is not necessary, in support of a judgment in such an action, where service has been had by publication, to determine the question whether it is a judgment in personam or one in rem. This precise point has recently been decided by the supreme court of the United States. Mr. Justice Brewer, speaking for the court, said: "The question is, not what a court of equity, by virtue of its general powers, and in the absence of a statute, might do, but it is, What jurisdiction has a state over titles to real estates within its limits? and what jurisdiction may it give, by statute, to its own courts to determine the validity and extent of the claims of non-residents to such real estate?": Arndt v. Griggs, 134 U. S. 320. There the power of the state to quiet title as against non-residents, by constructive service, is upheld, and the cases upon which appellant herein chiefly relies are fully considered and elaborately reviewed.

In that case, it is true, the statute of the state of Nebraska, which was under consideration, expressly provided for service by publication "in actions which relate to, or the subject of which is, real or personal property in this state, where any defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partially in excluding him from any interest therein, and such defendant is a non-resident of the state or foreign corpora tion"; but the authority conferred by the legislature of this state, in section 412 of the Code of Civil Procedure, is as great as that given by the Nebraska statute. While our statute is general, and in terms applies to all actions, it is not invalid because it includes in its provisions proceedings purely in per

sonam.

If the judgment in the action of Wakeham is valid and binding, and we hold that it is,- other questions raised by appellant need not be noticed.

The judgment and order are affirmed.

ACTION TO QUIET Title — ServICE BY PUBLICATION. — A decree to quiet title to realty and remove clouds from the same may be rendered upon service of summons by publication upon the defendant: Essig v. Lower, 120 Ind. 239; Bancroft v. Conant, 64 N. H. 151; Dillon v. Heller, 39 Kan. 599; Hahn v. Kelly, 34 Cal. 391; 94 Am. Dec. 742, and note 762-770. Compare Adams v. Cowles, 95 Mo. 501; 6 Am. St. Rep. 74.

With respect to the jurisdiction of courts over property within the state, acquired by service of process by publication, see Young v. Upshur, 42 La. Ann. 362; post, p. 000, and note.

JUDGMENTS-RES JUDICATA.

The estoppel of a former judgment extenda to every material matter within the issues which was expressly litigated and determined, and also to those matters which, although not expressly determined, are comprehended and involved in the things expressly stated and determined, whether or not they were expressly litigated and considered. It is not necessary to the conclusiveness of a former judg. ment that issue should have been taken upon the precise point controverted in the second action. Whatever is necessarily implied in the former decision is, for the purposes of the estoppel, deemed to have been actually decided.

JUDGMENTS - RES JUDICATA. — The only matter essential to making a former judgment on the merits conclusive between the parties is, that the question to be determined in the second action is the same question judicially settled in the first. A judgment is conclusive not only as to the subjectmatter in the suit, but as to all other suits which, though concerning other subject-matter, involve the same question in controversy. Accord ingly, the record of a finding of indebtedness in favor of a party to one suit is admissible and conclusive in a subsequent suit brought by his assignee to recover the same debt from the same judgment debtor. PRACTICE. IGNORANCE OF CAUSE OF ABATEMENT will never justify the filing of a plea in abatement after the time limited has expired.

W. B. Stoddard, and S. C. Loomis, for the appellant.

J. W. Alling, for the appellee.

ANDREWS, C. J. The appeal in this case presents two questions; one in respect to a plea in abatement, the other in respect to the admission of evidence. The complaint was returnable, and was returned to the superior court in New Haven County on the first Tuesday of March, 1888, at which time the parties respectively appeared. On the third day of March, 1890, and after the case had been regularly assigned

71

for trial, the defendant filed with the clerk, but without leave of the court, a plea in abatement for causes which in fact existed at the time the suit was brought, but of which the defendant was ignorant until that day. At the opening of the trial, the plaintiff moved the court that the plea in abatement be stricken from the files of the case. The court allowed the motion. This is alleged as error.

The first section of rule 19 of the general rules of practice (Practice Act, p. 261) is, that "all pleas in abatement in the superior court must be filed on or before the opening of the court on the day following the return day of the writ." The rule was intended to be exclusive. Ignorance of a cause of abatement will never justify the filing a plea after the time limited: James v. Morgan, 36 Conn. 348.

On the trial of the case, for the purpose of proving the indebtedness claimed in the complaint and specifically mentioned in the bill of particulars, the plaintiff offered in evidence the record of a case entitled Huntley v. Holt, tried in the superior court for New Haven County at its October session, 1839. To the admission of this record the defendant objected, but the court admitted it. This is the other alleged

error.

The case of Huntley v. Holt was a complaint brought by Huntley, the present plaintiff, alleging precisely the same indebtedness that is alleged in the present complaint, and praying for the foreclosure of a builder's lien upon certain lands to secure the payment thereof. It made Alfred Holt, the present defendant, and Mary Holt, his wife, defendants, and averred that they were both liable for the debt, and that while Mary Holt was the owner upon the record of the lands sought to be foreclosed, yet that Alfred Holt had an interest therein which might be foreclosed also. After that case had been pending in court for some time, Halstead, Harmount, & Co., a copartnership consisting of Andrew C. Halstead, A. J. Harmount, George P. Dunham, and Merrill Loomis, all of New Haven, were, upon motion of the defendants, made parties plaintiff thereto. It appeared that this copartnership was the assignee of nearly the whole of the indebtedness named in that complaint, as security for a larger sum due them from Huntley, and upon which Huntley still continued liable to them. In that action Alfred Holt made a separate defense, denying that he was indebted to the plaintiffs therein, either alone or jointly with his wife. Issue was joined on that defense,

it was fully tried, and the court found that he was indebted on account of the Dixwell Avenue house the sum of $907.39, and on account of the Gibbs Street house the sum of $939.56; and such finding was made a part of the judgment file. On other issues made in that case, it was found that Mary Holt was not liable in any way for the indebtedness, and it was also found that Alfred Holt had no interest in the land on which the houses were built that could be foreclosed. The complaint was thereupon dismissed. Upon the present trial, on evidence dehors the record, the court found that on the trial of the former case the question of the performance by the plaintiff of the contract was the matter on which most of the evidence on that trial was taken, and that it was argued by counsel on both sides.

We think there was no error in admitting that record. "The general rule is well settled that the estoppel of a former judgment extends to every material matter within the issues which was expressly litigated and determined, and also to those matters which, although not expressly determined, are comprehended and involved in the things expressly stated and decided, whether they were or were not expressly litigated or considered. It is not necessary to the conclusiveness of a former judgment that issues should have been taken upon the precise point controverted in the second action. Whatever is necessarily implied in the former decision is, for the purpose of the estoppel, deemed to have been actually decided ": Pray v. Hegeman, 98 N. Y. 358. See also Campbell Printing Press Co. v. Walker, 114 N. Y. 7. "The only matter essential to making a former judgment on the merits conclusive between the parties is, that the question to be determined in the second action is the same question judicially settled in the first. A judgment is conclusive not only as to the subject-matter in the suit, but as to all other suits which, though concerning other subject-matters, involve the same question of controversy ": Freeman on judgments, sec. 253. See also Aurora City v. West, 7 Wall. 82; Gardner v. Buckbee, 3 Cow. 120; 15 Am. Dec. 256; Collins v. Bennett, 46 N. Y. 490; Babcock v. Camp, 12 Ohio St. 11.

It is found that Halstead, Harinount, & Co. are now the assignees of the whole debt owed by Alfred Holt to Huntley; that is, the whole of the debt for which this suit is brought. The suit might have been prosecuted in his name for their benefit: Saugatuck Bridge Co. v. Town of Westport, 39 Conn.