Kwilecki v. Holman

| Mo. | Jun 2, 1914

OPINION.

BOND, J.

(After stating the facts as above.)— Although the amount in dispute in this case is far below the pecuniary limit of the jurisdiction of' the St. Louis Court of Appeals within whose territorial jurisdiction the cause of action arose, the appeal was properly taken to this court since its consideration “involves the construction of the Constitution of the United States.” The power of this court to decide, in a suit properly before it, the validity of an act of the Legislature of a sister State from the standpoint of its conformity to a provision of the Constitution of the United States, is well settled in reason and by authority. [Stoddart v. Smith, 5 Binn. (Pa.) l. c. 363.]

In the case cited a transitory action was brought in Pennsylvania, and the question involved was the constitutionality of the statute of the State of Maryland, upon which the title of the plaintiff to certain lots depended. The court said: “His title depends on the act of assembly; the act of assembly depends on the Constitution of the United States, which we are sworn to support. So that it is impossible to get at the merits of the case, without deciding on the act of assembly. Nor can our decision have the least effect on the independence of the State of Maryland, or on the validity of the act of assembly within the jurisdiction of Maryland. It only affects the cause before us; and if the courts of Maryland should differ with us in opinion, they will pay no regard to our judgment, except so far as it affects this cause. ”

But a different rule would apply if the question presented here related only to the validity of an act pf a sister State as judged by its own Constitution, and did not involve the construction of the Constitution of the United States. For the decision of that question by the Supreme Court of the sister State would be controlling both in other states and in the Federal courts. [Fowler v. Lamson, 146 Ill. l. c. 478; Fairfield v. County of Gallatin, 100 U. S. l. c. 50.] In the latter case it is said: “It is the peculiar province of the Supreme Court of a State to interpret its organic laws, as well as its statutes, and it is the duty as well as the «pleasure of this court to follow and adopt that court’s interpretation.”

There is nothing in the ruling of Chief Justice Holmes of Massachusetts (now associate justice of the Supreme Court of the United States), to the contrary in Woodward v. Central Vt. Ry., 180 Mass. 599" court="Mass." date_filed="1902-02-28" href="https://app.midpage.ai/document/woodward-v-central-vermont-railway-co-6427759?utm_source=webapp" opinion_id="6427759">180 Mass. 599; for in that case it appeared that the statute of Vermont had not been passed upon by the Supreme Court of that State on the point of its disharmony with the Constitution of Vermont. The learned judge expressed regret that the question of the validity of its statute under its own Constitution had not been before the Supreme Court of Vermont and added: “But as it arises in a suit properly before us we must deal with it to the best of our ability, as our predecessors and the courts of other States have done in similar cases.” [Citing cases.]

The Supreme Court of Georgia has affirmed the validity of the statutes of that State governing the maintenance of attachment suits tested by its own Constitution and by the Federal Constitution. [Pyrolusite Manganese Co. v. Ward, 73 Ga. 491" court="Ga." date_filed="1884-12-21" href="https://app.midpage.ai/document/pyrolusite-manganese-co-v-ward-5561459?utm_source=webapp" opinion_id="5561459">73 Ga. 491; Smith v. Brown, 96 Ga. 274" court="Ga." date_filed="1895-08-16" href="https://app.midpage.ai/document/smith-v-brown-5566237?utm_source=webapp" opinion_id="5566237">96 Ga. 274; McCrory v. Hlal, 104 Ga. 666" court="Ga." date_filed="1898-05-28" href="https://app.midpage.ai/document/mccrory-v-hall-5568399?utm_source=webapp" opinion_id="5568399">104 Ga. 666.] The theory upon which that ruling was made is, that the fact of legal seizure of his property under the attachment writ is constructive notice to the owner, in that he will surely learn of the official execution of that writ and thus be informed of the attachment suit against himself. And that this knowledge will come to him whether he be a resident or a non-resident— in the one case by his personal cognizance, and in the other by information from his representative in charge of the property from whose custody it was taken when seized under the writ. In order to have this effect, the service of the writ, whether upon lands or chattels, must be real and actual and by such a caption as they are susceptible of. It is not sufficient for the officer to make an entry of levy without more. [Albright-Pryor Co. v. Pacific Selling Co., 126 Ga. l. c. 501; Tuells v. Torras, 113 Ga. 691" court="Ga." date_filed="1901-05-23" href="https://app.midpage.ai/document/tuells-v-torras-5570945?utm_source=webapp" opinion_id="5570945">113 Ga. 691; Baker v. Aultman & Co., 107 Ga. 339" court="Ga." date_filed="1899-04-22" href="https://app.midpage.ai/document/baker-v-aultman--co-5569041?utm_source=webapp" opinion_id="5569041">107 Ga. 339.]

II.

In this case the title of respondent to the goods for conversion of which this suit was instituted, rests solely upon the validity of the judgment in rem rendered in the attachment proceeding brought in a justice’s court in the State of Georgia; hence, the burden of establishing the jurisdiction of that tribunal to order the sale of the property is cast upon him.

The documentary evidence and the testimony of the levying officer tends to prove the regularity and validity of the issuance, the levy and legal seizure, and return thereof upon the writ, as well as the subsequent sale of the property and its purchase by respondent, and the delivery of possession to him.

Appellant adduced no evidence to the contrary, but predicates his entire defense upon the notion that the statutes of Georgia were violative of the Federal Constitution. We are unable to assent to that view. We concur in the reason to the contrary so well stated in the ruling of the Supreme Court of Georgia when that question was before it. We think, as that court thought, that constructive service was had upon the non-resident defendant in the attachment suit in Georgia by the legal seizure of his property; that such a physical taking of it would be sooner ascertained by him than the information which might come from the chance of his seeing a foreign local publication.

The judgment is herein affirmed.

All concur.