262 U.S. 544 (1923), 17, Kentucky Finance Corporation v. Paramount Auto Exchange

Docket Nº:No. 17
Citation:262 U.S. 544, 43 S.Ct. 636, 67 L.Ed. 1112
Party Name:Kentucky Finance Corporation v. Paramount Auto Exchange
Case Date:June 11, 1923
Court:United States Supreme Court

Page 544

262 U.S. 544 (1923)

43 S.Ct. 636, 67 L.Ed. 1112

Kentucky Finance Corporation


Paramount Auto Exchange

No. 17

United States Supreme Court

June 11, 1923

Argued October 5, 1922




1. A corporation which goes into a state other than that of its creation for the lawful purpose of repossessing itself, by a permissible action in her courts, of specific personal property unlawfully taken out of its possession elsewhere and fraudulently carried into that state is a person within the jurisdiction of that state within the meaning of the Fourteenth Amendment, for all the purposes of that, undertaking, and entitled to the equal protection of the laws. P. 549.

2. As applied to such a case, a statute under which the foreign corporation, not domesticated or doing business in the state or having property there other than that so sought to be recovered, may be compelled, as a condition to the maintenance of its action, to send its officer, with its papers and books bearing on the matter in controversy, from its domicile to the state where the action is brought in order to submit to an adversary examination before answer, but which does not subject nonresident individuals to such

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examination, except when served with notice and subpoena within the state, and then only in the county where service is had, and which limits such examinations, in the case of residents of the state, individual or corporate, to the county of their residence, violates the Equal Protection Clause. Id.

171 Wis. 586 reversed.

Error to a judgment of the Supreme Court of Wisconsin sustaining two orders, one for examination of the plaintiff before answer and the second striking out its complaint and dismissing its action for failure to comply with the first.

VANDEVANTER, J., lead opinion

MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.

The plaintiff in error, a Kentucky corporation, brought an action of replevin in a state court at Milwaukee, Wisconsin, against the defendant in error, a Wisconsin corporation, to recover an automobile, the right of recovery asserted in the complaint being put on the ground that the plaintiff was the owner and entitled to the possession of the automobile, that one Allen had unlawfully taken it from the plaintiff's possession at Louisville, Kentucky, had fraudulently removed it to Milwaukee, and had there wrongfully delivered it to the defendant, and that the defendant was unjustly withholding it from the plaintiff under some groundless claim derived from Allen. The defendant appeared and obtained from the court an order requiring the plaintiff's secretary, who resided at Louisville and was in the plaintiff's service there, to appear in Milwaukee at a fixed time before a designated court commissioner, to bring with him all papers, files, and records of the plaintiff which were under his control and relevant

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to the controversy, and then and there to submit to an examination by the defendant. The order was sought and granted on the ground that the examination would better enable the defendant to plead to the complaint, which as yet it had not done. The plaintiff was not engaged in any business in Wisconsin, nor had it complied with the law of that state prescribing conditions on which it might do so. It had no property in the state other than the automobile, and it had gone into the state only for the purpose of instituting and prosecuting the action to repossess itself of that vehicle. Its secretary was not within the state, nor did it have any representative there other than the attorneys who were prosecuting the action in its behalf. For itself and its secretary, it consented that such an examination as was sought might be had at Louisville at any time and before any officer the court might designate, but it objected to any order requiring that the examination be had in Milwaukee. The objection was overruled, and the court put in the order a direction that the defendant tender to the plaintiff for its secretary the railroad fare from the southern boundary of Wisconsin to Milwaukee and return, being $4.74, and one day's witness fee, being $1.50. The tender was made and declined, and the secretary, with the plaintiff's approval, refused to comply with the order. Because of this, the court, on the defendant's motion and over the plaintiff's objection, made a further order striking the plaintiff's complaint from the files and dismissing its cause of action, with costs. On appeal to the supreme court of the state, both orders were sustained over the plaintiff's contention that they and the statute under which they were made violate the due process and equal protection clauses of the Fourteenth Amendment. 171 Wis. 586. To obtain a review of the judgment of the Supreme Court, the case was brought here on writ of error under § 237 of the Judicial Code.

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The statutory provisions whose validity is questioned are parts of a procedural measure, embodied in the 1917 edition * of the Wisconsin Statutes, abrogating prior modes of obtaining a discovery under oath and providing for an adversary examination of a

party, his or its assignor, officer, agent or employee, or of the person who was such officer, agent or employee at the time of the occurrence

involved -- the examination to be had at any time after the case is begun and to take the form of a deposition "upon oral interrogatories" and be transmitted to the court like other depositions. The provisions in question are subdivision 7 of § 4096 and subdivision 2 of § 4097, which read as follows:

In case a foreign corporation is a party, the examination of its president, secretary, other principal officer, assignor or agent or employee, or the person who was such, or either of them at the time of the occurrence of the facts made the subject of the examination may be had under the provisions of this section in any county of this state. The court may also, upon motion and such terms as may be just, fix a time and place in this state for such examination of any of said persons. Such persons so sought to be examined as...

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