Clara Moredock, a citizen of Kentucky, brought this action in the state court against F. M. Kirby, a citizen
“Executed July 15, 1902, on F. M. Kirby, doing business under the firm name of F. M. Kirby and Co., by delivering a copy of the within summons to C. P. Dodge, the person in charge of the business of said F. M. Kirby, at No. 504 and 506 Fourth avenue, Louisville, Ky„ the said F. M. Kirby being a nonresident of the state of Kentucky, but being engaged in business in the state of Kentucky at Nos. 504 and 506 Fourth avenue, Louisville, Kentucky.
“E. T. Schmitt, S. J. C.
“By H. Woods, D. S.”
In due season the defendant, specially entering his appearance for that purpose only, filed his petition for a removal of the action to this court, and upon execution of the proper bond an order of removal was entered accordingly. Upon filing the record in this court the defendant entered a motion to quash the sheriff’s return on the summons. By an act of the general assembly of the commonwealth of Kentucky, passed in 1893, section 51 of the Civil Code of Practice was amended, and the amendment is what is now commonly known as subsection 6 of section 51 of the Code. It is in this language:
“In actions against an Individual residing in another state, or a partnership, association, or joint stock company, the members of which reside in another state, engaged in business in this state, the summons may be served on the manager, or agent of, or person in charge of such business in this state in the county where the business is carried on, or in the county where the cause of action occurred.”
The determination of the motion to quash the return must, therefore, depend upon the validity of a service made pursuant to this legislation of the staite of Kentucky and its efficiency under the constitution of the United States to give the court jurisdiction over the person of a citizen of another state upon whom, confessedly, service was not had unless the service indicated by the return must be held constructively to have given the defendant the notice which he was entitled by law to have before a court acquired jurisdiction over his person. Subsection 1, § 2, art. 4, Const. U. S., is in this language:
“The citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states.”
The purpose of this most essential provision, and the vital principle upon which it is based, must be obvious. It was matter of the gravest moment, if the people of the United States were to have “a more perfect union,” or if “domestic tranquillity” was to be “insured” to them, as suggested in the preamble, that such a provision should be inserted in the organic law; otherwise each state would take care mainly of its own citizens, and by a system of discriminations, which would naturally grow more strict and hostile as time progressed, we should only have
The supreme court has persistently declined to limit itself to any express definition of the terms “privileges and immunities,” as used in the constitution, but has repeatedly held that they were such as are fundamental, and belong to every citizen of all free governments. Slaughterhouse Cases, 16 Wall. 77, 21 L. Ed. 394. It is not doubted that one of them is the right to be exempt from a personal judgment for a money demand without the service of process,—an exemption which the supreme court has said was “founded on principles of natural justice.” Pennoyer v. Neff, 95 U. S. 730, 24 L. Ed. 565; Insurance Co. v. French, 18 How. 406, 15 L. Ed. 451. That right is doubtless fundamental, and belongs to every citizen of every free country. Such an exemption is certainly an “immunity” or a “privilege” of the citizens of Kentucky under the laws and judicial proceedings of that state. If a citizen of Kentucky has the “immunity” of being exempt, under such circumstances, from a personal judgment, it constitutionally follows that the citizen of Pennsylvania is equally “entitled” to it. And it may be added that the right to be protected by the constitutional inhibition of any state legislation which shall subject any citizen to the liabilities of a personal judgment without due process of law is the common right of all. Can a citizen of Pennsylvania lose this right in Kentucky by reason of not residing here? We think not. On the contrary, we think it makes no difference where an individual resides or engages
If, therefore, we went no further, it must be plain upon the face of the Kentucky legislation, when it is tested by the supreme law of the land, that it violates the rights of the defendant as they are guarantied to him by the national constitution by depriving him of an immunity or exemption allowed to citizens of Kentucky. In the case of Carpenter v. Laswell (Ky.) 63 S. W. 609, the court of appeals seems to have assumed that service of a summons upon a citizen of another state, made pursuant to the provisions of the act of 1893, was valid; but, if the question had been raised at the argument- of that case, it does not so appear from the opinion of the court, wherein the question of the validity and potentiality of the legislation is neither considered nor decided. But, even if it had been passed upon, this court would not have been bound by the ruling. See the instance of conflict pointed out in Goldey v. Morning News, 156 U. S. 520, 15 Sup. Ct. 559, 39 L. Ed. 517. So far as we can find reported, the precise question involved in this case does not seem to have been decided by any court, though it is quite true that many questions very closely related to it have been adjudicated. A leading case is that of D’Arcy v. Ketchum, 11 How. 165, 13 L. Ed. 648. In that case the attempt was made in Eouisiana to uphold a judgment in personam rendered in New York against an absent partner, where, under a New York statute, service had been made upon -the partner found in that state, but not upon the absent partner in person. The court held that such a service could not confer jurisdiction over the person of the absent partner, and that the judgment was void, notwithstanding the provision of the constitution requiring that full faith and credit shall be given in each state to the judicial proceedings of every other state. The doctrine of this case was adhered to, and, indeed, emphasized, in Hall v. Lanning, 91 U. S. 161, 23 L. Ed. 271. Grover v. Radcliffe, 137 U. S. 287, 11 Sup. Ct. 92, 34 L. Ed. 670, was a case where Radcliffe, a citizen of Maryland, had executed a bond containing a warrant authorizing any attorney of any court of record in New York, or in any other state, to confess judgment for the penalty therein named, and, under a local statute per
It thus appears that the statutes of various states which have attempted to deny or abridge the right of the citizen to personal service of summons as a necessary condition precedent to jurisdiction over him in a judicial proceeding have been held to be wholly ineffectual for the purpose. But, though this is true, all the authorities hold that, where the purpose of the action is to seize and attach property merely, no personal judgment being sought, different principles apply. If property is within the “grasp of the court” by having been seized within its jurisdiction by attachment or other proper writ, it will become subject to whatever orders and judgments the court may make respecting it. So a court may obtain jurisdiction in certain cases to establish the status of a citizen of the state in which the court sits. But these matters stand apart, and in no way affect the general doctrine of the courts, and especially of the supreme court of the United States, that the principles of natural justice require that no one shall be subjected to a money judgment in personam unless he has been duly and personally served with notice of the pendency of the action, or unless he voluntarily appears, therein. Even corporations, which must necessarily act through agents, and a summons upon which
“It is an unquestioned principle of natural justice that a man should have notice of any legal proceeding that may he taken against him, and a full and fair opportunity to make his defense. The law never acts by stealth; _ it condemns no one unheard. It is true that in proceedings in rem the notice may be constructive only, but here the action is directed against the thing itself, and there is no attempt to fasten a personal liability upon the parties concerned. It is true also that constructive service of process is authorized in some other cases, but not for the purpose of a personal judgment. A personal judgment rendered against a deiendant without notice to him or-an appearance by him is without jurisdiction, and is utterly and entirely void. We think it may be regarded as settled that a judgment of any court, in a suit requiring ordinary adversary proceedings, that appears upon its face or may be shown by evidence (in a case where it may be shown) to have been rendered without jurisdiction having been acquired, by notice, of the person of the defendant, or without jurisdiction of the subject-matter, is void, and may be treated as being so when it comes in question collaterally. Nor is this rule confined to judgments at law. A decree in chancery against a defendant who was never served with process and did not appear is void, and may be set aside, although not appealed from. And, if the court has not acquired jurisdiction of the person of the defendant, as in the ease that no. sufficient process has been served upon him, no judgment, even of abatement, can be rendered against the plaintiff, for the defendant must become a party before the court before he can have a judgment.”
In Goldey v. Morning News, 156 U. S. 519, 15 Sup. Ct. 559, 39 L. Ed. 517, allusion is made by the court to the service of “mesne process” upon the “authorized agent” of a defendant, but mesne process- and original process and final process are very different things. Bouvier, in his Law Dictionary, defines the former by saying that “process-which is issued in a suit between the original and final process is called ‘mesne process.’ ” The court, of course, used the word advisedly, and had nothing in view except an interlocutory notice, or something of a kindred nature While constructive or substituted service—one form of which was attempted to be provided for in the amendment made to-the Civil Code of Practice by the act of 1893—is adequate in actions in rem or quasi in, rem as to the thing seized, it is not so as to any judgment in personam which may be sought. This is the rule clearly and certainly established by the authorities.
The general question involved in the pending motion may, therefore,, be stated to be this: Does the character of service indicated by the sheriff’s return on the summons confer on the court the lawful power to hear and determine the cause and render judgment against the defendant if he shall fail to defend it; in other words, does that service give the court jurisdiction over the person of the defendant? What has been said resolves the question in the negative, inasmuch as, in the court’s opinion, such a service is a nullity.
2. This result may be reached upon other grounds, possibly different, though still closely connected. Not only would the provisions of the fourth article of the constitution be disregarded by holding other
3. It is also- contended that a citizen or resident of another state, who has engaged in business in Kentucky since the passage of the act of 1893, has done so with notice of its provisions, and should be held to have impliedly consented to be subject thereto. His constitutional right to acquire, hold, and enjoy property, or otherwise to engage in business in this state, on an equal footing with any citizen of Kentucky, is unquestionable. It cannot be presumed that such a right would be waived at all, and certainly not where there was no possible nécessity nor consideration for doing so. Indeed, his rights in the premises might be regarded-as inalienable; but, whether so or
It follows that the motion to quash the, return of the summons must prevail, and an order to that effect will be entered.