195 F. 158 | W.D.N.Y. | 1912
This an action brought in the district of which the defendant corporation, a citizen of this state, is a resident, and wherein it is engaged in business, to recover a judgment on a judgment of $2,000 rendered in favor of the plaintiff, a citizen of the state oí Kenthcky, by the circuit court of Mercer county, Ky. The defense is that the judgment was and is null and void, in that the court was without jurisdiction of the person of the defendant, and specifically that the record of the judgment upon which the plaintiff relies does not show that the defendant, a nonresident of the state of Kentucky when the service was made, was engaged in business in that state, and also that the return of the sheriff on its face shows that service of the summons was not made upon such a person as was required by law.
“Executed by delivering a true copy of the within summons to J. E. Monroe the chief agent of the defendant in Mercer county, this 24th day of June, 1907.”.
A motion to quash on affidavits controverting the return was duly made on the grounds that service was not had on a proper representative of the defendant, and that it was not engaged in business in the state of Kentucky. The sheriff was permitted by the court to amend his return to read as follows:
“Executed this summons by delivering a true copy thereof to J. B. Monroe, the managing agent of the defendant found in Mercer county, Kentucky; said Monroe being the only agent of the defendant found in Mercer county, the Eoster-Milburn Company having no president, or vice president, or secretary, or librarian, or cashier, or treasurer, or clerk, or other managing agent than the said J. E. Monroe in Mercer county, Kentucky, the said defendant, the Foster-Milburn Company, being a nonresident of the state of Kentucky, and none of the officers above named reside in Kentucky, and all of the said officers named, except the said J. E. Monroe, are now absent from the state of Kentucky. This June 24th, 1907.”
And thereupon the motion to quash was denied. A petition for removal was then filed to the United States District Court for the Eastern District of Kentucky, but the petition was disallowed with leave to the defendant to appeal, and at the same time the defendant was required to answer before December 15th next ensuing. Later, the appeal not having been perfected, its answer reciting its objection to the jurisdiction of the court and to the merits was filed. The next step was to move the court to do nothing further in the action on the ground of removal to the United _ States Circuit Court'; but on February 8, 1908, on motion of the plaintiff, the cause was remanded to the state court. A demurrer was next interposed to the petition which was also overruled, and afterwards an amended answer to the merits was filed saving, as far as possible, the question of the jurisdiction of the court. On May 22, 1908, the trial was had and verdict rendered by the jury for the plaintiff in the sum of $2,500. A motion for a new trial being denied, the case was appealed to the Court of Appeals, and subsequently the judgment was reversed on errors committed on the trial. A motion was again made just prior to the second trial to dismiss the action on the jurisdictional ground, but it was denied and the trial proceeded; the jury rendering a verdict for the plaintiff in the sum of $2,000. Thereupon defendant’s motion for a new trial was denied by the court, and a second appeal taken to the Court of Appeals solely from the order denying the motion to quash the service of summons; but the Court of Appeals affirmed the judgment, and held that by appealing the defendant waived the special objection to the service, and submitted itself to the jurisdiction of the court. The judgment is res adjudicata, and the validity of the service cannot be relitigated in this court.
In Thomas v. Virden, supra, the plaintiff in error was sued in Florida where a judgment was recovered against him, and later the judgment was sued upon in this district. Thomas contended that he was not concluded by the judgment because he had never personally appeared in the action or authorized any one to appear for him. The record showed an appearance on his behalf by lawyers employed by an agent, but he undertook to show that the appearance and intervention were without his authority. The Circuit Court of Appeals for this circuit held that in an action on the judgment it could be shown that the appearance was without authority from the defendant in the action, but as the dispute in relation to appearance had been determined by the court in Florida, which had jurisdiction of both the parties and the subject-matter, though Thomas was not personally served with the summons, the order of the court holding the appearance regular was binding upon him, and the foreign judgment was res ad judicata. This cáse strengthens the view already expressed that, where there is a dispute between the return of the sheriff showing a proper service, and affidavits in opposition showing irregularity in the service, the decision of the court is binding, and cannot again be litigated in an action to recover on the judgment.
“After its objection to tbe process was overruled tbe defendant filed an answer to the merits. There was a trial and a judgment on the whole case. From this judgment the appeal before us is prosecuted. It will therefore be before the lower court on the merits when the action is returned to the lower court.”
In the case at bar on the reversal by the Court of Appeals of the judgment rendered on the first trial and in answer to the contention by counsel for the defendant that the service of the summons was illegal,- it was said in the opinion:
“If an appeal is to a reviewing court, it is a general appearance in the sense that, on reversal and remand to the trial court, defendant is in court for the purpose of further proceedings, without any further steps to bring him into court, even though the judgment was reversed on the ground that the trial court had no jurisdiction of the person of tie defendant.”
Such prescribed rule having been in force in Kentucky for many years, the controversy relating to improper service must he regulated and controlled by it. Whatever the law was in’ the state of Kentucky must be taken as the law in a collateral action to recover on the judgment, and this is so even though this court would deem itself bound to apply a different rule were it not for such judicial decisions. Hanley v. Donoghue, 116 U. S. 1, 6 Sup. Ct. 242, 29 L. Ed. 535; Chase v. Curtis, 113 U. S. 452, 5 Sup. Ct. 554, 28 L. Ed. 1038. While these cases arose on different facts, the principle announced by them is not inapposite.
The. defendant, indeed, argues that from the beginning its appearance in the action was special, that it was insistent that the summons was not lawfully served, that motions, were made to- quash, and that at all stages the question of jurisdiction was reserved; but, according to the decisions of the highest courts of the state of Kentucky, these acts were wholly inconsistent with its plea to the merits and appeal for the correction of the judgment. The defendant was not compelled to appear and answer. It possessed no property in Kentucky subject to
It is well settled that a statute providing that a motion to quash service of a summons or citation shall be deemed a general appearance for all purposes is a valid and constitutional enactment. Maysville v. Ball, 108 Ky. 261, 56 S. W. 188; York v. Texas, 137 U. S. 15, 11 Sup. Ct. 9, 34 L. Ed. 604; Southern Pacific Co. v. Denton, 146 U. S. 208, 13 Sup. Ct. 44, 36 L. Ed. 942; Mexican Cent. Ry. v. Pinkney, 149 U. S. 194, 13 Sup. Ct. 859, 37 L. Ed. 699; Caskey v. Chenoweth, 62 Fed. 712, 10 C. C. A. 605; Kauffman v. Wooters, 138 U. S. 285. 11 Sup. Ct. 298, 34 L. Ed. 962. In York v. Texas, supra, the service of process was conceded to be a nullity, but the Supreme Court, though apparently criticising the statute, upheld it, and said:
“The state has full power over remedies and procedure in its own courts, and can make any order it pleases in respect thereto, provided' that substance or right is secured without unreasonable burden to parties and litigants.”
True, there is no statute in Kentucky containing a similar provision. Nevertheless the judicial decisions of the Court of Appeals have the force of law, and must be given the same effect as though the legislature of the state had enacted them into the statute law of the state.
My conclusions therefore are, first, that, inasmuch as the defendant corporation appeared and challenged the jurisdiction of the court and took issue upon the return of the sheriff,, the decision of the Mercer Circuit Court cannot he revised or corrected by this court; and, second, that by answering to the merits and appealing from the judgment
The plaintiff is entitled to judgment as demanded in the complaint, with costs.