Bryant v. Shute's Ex'r

• Decision Date: 28 February 1912
• Citation: 144 S.W. 28,147 Ky. 268
• Parties: BRYANT et al. v. SHUTE'S EX'R et al.
• Court: Kentucky Court of Appeals

144 S.W. 28

147 Ky. 268

BRYANT et al. v. SHUTE'S EX'R et al.

Court of Appeals of Kentucky.

February 28, 1912

Appeal from Circuit Court, Kenton County, Common Law and Equity Division.

Action by Catherine Shute's executor and others against Helen A Bryant and another. From a judgment for plaintiffs defendants appeal. Affirmed.

Myers &amp Howard, for appellants.

Mackoy & Mackoy, for appellees.

SETTLE J.

This action was instituted by appellees in the court below upon a personal judgment amounting to $1,617.20, with interest thereon from October 5, 1905, which they had recovered in the municipal court of the city of Boston, Sussex county, Mass., against the appellant Helen A. Bryant. The judgment in question was for the amount due on a note executed March 8, 1889, to Catherine Shute, appellees' intestate, by the appellant Helen A. Bryant. To that action appellant made no defense. But in the case at bar her answer, as amended, set up several grounds of defense. On the submission of the case, however, judgment was rendered in appellees' favor for the amount of the former judgment and interest; also, for the enforcement of a lien on certain real estate upon which appellant had given a mortgage as security for the payment of the note merged in the former judgment, which real estate was ordered to be sold in satisfaction of the judgment. But no disposition was made by the circuit court of an attachment which appellees caused to be issued and levied upon certain other lands in Kenton county owned by appellant; that matter being reserved for future adjudication. This appeal is prosecuted from that judgment.

It appears from that record that the judge of the circuit court wrote an opinion covering every aspect of the case, and we find that its admirable statement of the facts and law of the case so fully conforms to the conclusions we have reached that it is hereby adopted as the opinion of this court:

On March 8, 1889, the defendants, Helen A. Bryant and James T. Bryant, then her husband, executed and delivered to Mary Ann Maynard their promissory note for $800, due and payable one year after date with interest at 8 per cent. The note was executed and delivered in the state of Ohio, where that rate of interest is legal. Mary Ann Maynard assigned and transferred the note to Catherine Shute, and, after her death, the plaintiffs, as executors of her will, instituted an action against the defendants Helen A. Bryant and James T. Bryant in the municipal court of the city of Boston, Mass., on September 16, 1905, upon said note, and thereafter, on October 6, 1905, obtained a judgment against said defendants for the sum of $1,607.20, being the amount of the principal and interest then found to be due upon the note, and the costs of the action, amounting to $8.63. The note mentioned was secured by a mortgage upon real estate in Kenton county, Ky. This action was then brought in this court upon that judgment obtained in the municipal court of the city of Boston, seeking to subject the mortgaged property to the payment of the judgment, and also seeking to subject by attachment other property of the defendant Helen A. Bryant to the payment of the demand; it being alleged that the mortgaged property is not sufficient to satisfy the demand. It is alleged and duly proved by a copy of the record of the proceedings of the municipal court of the city of Boston, duly certified in accordance with the act of Congress, that summons and attachment was issued in said court against the defendant, and was executed by the sheriff, his return being as follows:

"Suffolk--ss.: Boston, Sept. 22, 1905.

"By virtue of this writ I this day attached a chip as the property of the within named defendants, James T. Bryant and Helen A. Bryant, and afterwards on the same day I summoned them to appear and answer at court as within directed by leaving at the last and usual place of abode of said Helen A. and by delivering in hand to said James T. each a summons of this writ.

C1"2

Service .. $ 1 00 Jeremiah G. Fennessy,

Travel ....... 08 Deputy Sheriff."

------

$ 1 08

The answer of Helen A. Bryant pleads that she was not served with summons; that the execution of the attachment by attaching a chip as her property was a false and fictitious return for the purpose of securing jurisdiction of her person; that the sheriff and deputies and the plaintiffs in this case knew the place of her temporary abode in the city of Boston with her daughter at the time of the institution of the action, and that either or all of them could have learned of her whereabouts and of her temporary place of abode; that she did not receive the summons or notice of it, and that it was not left at her place of abode; and that she did not know that a judgment had been rendered in that court against her until the institution of this action.

Issues are formed in the pleadings as to the laws of Massachusetts sustaining the validity of the service. Without going more into detail as to the pleading, it may be said that two questions are presented with reference to the validity of the service of summons: (1) As to whether or not the service of summons in question is valid under the laws and judicial opinion of the state of Massachusetts for the purpose of sustaining a personal judgment? (2) If it is sufficient under the laws and judicial opinions of that state, the question remains as to whether or not such process is "due process" within the meaning of the Constitution?

The statement that a judgment, if valid in the state in which it was rendered, is valid in all other states, and is to be given full faith and credit, is true, but its validity is not to be determined solely by the decisions of the courts of that state upholding its validity, for, if that were true the provisions of the Constitution prohibiting one from being deprived of his property without due process of law could and would be rendered of absolutely no effect by the Legislatures of the states prescribing as the method of serving process in a civil action a scheme of substituted service which would be utterly ineffectual in most cases to notify the defendant of the pendency of the action against him, and by the courts of such states holding that the service was sufficient to sustain a personal judgment. In Davidson v. New Orleans, 96 U.S. 97, 24 L.Ed. 616, in considering that question the court said: "Can a state make anything due process of law, which by its own Legislature it chooses to declare such? To affirm this is to hold that the prohibition to the states is of no avail, or has no application where the invasion of private rights is effected under the forms of state legislation." The service must be valid in the state where the judgment was rendered according to its laws and judicial opinions, but it must also be "due process" of law within the meaning of the Constitution as determined or interpreted by the court of last resort having jurisdiction to construe it. Hence, the two questions present themselves.

The statutes of Massachusetts in force at the time of the proceedings in the municipal court of the city of Boston provide:

"29--A separate summons which is served after an attachment of property shall be served by delivering it to the defendant or by leaving it for him as hereinafter provided; and an original summons without an attachment shall be served by reading it to the defendant, by delivering to him a copy thereof, attested by the officer who serves it, or by leaving such copy for him as hereinafter provided.

"30--The separate summons may be served at any time after the attachment has been made, if it is served the number of days before the return day required for the service of the original writ; and a certificate of the summons shall be endorsed on the original writ.

"31--If the summons is not served personally on the defendant, the original or a copy, as the case may be, shall be left at his last and usual place of abode, if he has any within the commonwealth known to the officer. If he has none, it shall be left with his agent or attorney, if he has any within the commonwealth known to the officer. If he has no such last and usual place of abode, and no tenant, agent or attorney, no service upon him shall be required except as provided in the three following sections."

See 2 Revised Laws of Mass. (Ed. 1902) c. 167, §§ 29, 30, and 31.

It will thus be seen that the statute is complied with by delivering or leaving at the defendant's last and usual place of abode a copy of the summons, whether an attachment is issued or not. This construction is sustained by decisions of the courts of the state. It is proven in this case that in commencing an action in Massachusetts you may have simply a summons, or you may have a summons and attachment embraced in one writ called a writ of attachment and summons, or it may be a writ of capias and attachment, at the will or election of the person using the same. It appears that in practice the writ of summons alone is not usually issued, but that the more common practice is to issue the writ of summons and attachment, whether an actual seizure of the defendant's property is contemplated or not, and that the sheriff only makes an actual seizure of property when directed. Unless so directed, he executes the order of attachment by levying upon a chip or a glove, a mere nominal attachment. It is established by the evidence that this has been the practice for over 100 years, and has been upheld as a personal service or its equivalent by the courts of final resort in the state. The cases cited by the attorneys testifying sustain this statement of the law. Ames v. Winsor, 19 Pick. (Mass.) 247; Jones v. Walker, 15 Gray (Mass.) 353; Peabody v. Hamilton, 106...