Burt & Brabb Lumber Co. v. Bailey
| Decision Date | 24 December 1909 |
| Docket Number | 5,478. |
| Citation | 175 F. 131 |
| Parties | BURT & BRABB LUMBER CO. v. BAILEY. |
| Court | U.S. District Court — Eastern District of Arkansas |
This is an action on a judgment rendered by the circuit court of Leslie county, state of Kentucky. The defenses set up by the answer are that the circuit court of Leslie county was without jurisdiction of the person of the defendant for the following reasons:
(1) That he was not legally and properly served with a summons in said cause, nor did he enter his appearance personally or by attorney or otherwise.
(2) That at the time the proceedings in said action were commenced, and ever since, defendant was a citizen of Arkansas, residing therein, and was not legally or properly served with process, and that he never appeared in said action.
(3) That when said action was commenced he was temporarily in the county of Knott, state of Kentucky. That the action was pending in the circuit court of Leslie county of that state and he was not served in Leslie county. If it was attempted to serve said summons by delivering a copy to him in Knott county, such service would not, under the laws of Kentucky constitute a legal service in an action pending in Leslie county; and not having entered his appearance either in person or by attorney or otherwise, and not having in any way waived legal service of the summons, the circuit court of Leslie county was without jurisdiction to render a valid judgment against him, and for these reasons the judgment herein sued on, it is charged, is absolutely void.
There was also a set-off claimed in the answer.
The parties having by stipulation in writing waived trial by jury, the cause was tried to the court, and the following special findings of facts made (1) That the plaintiff is a corporation organized and existing under the laws of the state of Michigan, and that the defendant is a citizen of the state of Arkansas, residing in this division and district.
(2) That on July 2, 1890, the defendant, in consideration of the sum of $760.10 paid to him by George F. Cross, conveyed to the said George F. Cross, his heirs and assigns, by deed with full covenants of warranty, 691 trees standing and growing on certain lands in the county of Leslie, state of Kentucky with the right and privilege of going on the lands for the purpose of cutting and removing them within the period of five years, and for a longer period if desired.
(3) That by mesne conveyances these trees and the right of cutting and removing them became the property of the plaintiff, the successor of the Asher Lumber Company; Cross' deed conveying all the rights acquired from Bailey as shown by the deed of Bailey to him.
(4) That before the trees were cut, and after they had become the property of the plaintiff as the remote grantee of the defendant, one Reuben Bailey, who claimed to be the owner of the lands o which said trees were standing, and by virtue of such ownership the owner of the trees by title adverse and superior to that of the defendant, brought a suit in equity against the plaintiff in the circuit court of Leslie county, state of Kentucky, to enjoin defendant from cutting the said trees or entering upon his lands and canceling the deeds as clouds upon his title. That the plaintiff notified the defendant of the pendency and nature of that action and called on him to defend and protect his covenants of warranty to said trees, but defendant failed to employ counsel to make such defense, whereupon plaintiff employed counsel and incurred court costs for the purpose of making a proper defense; the defendant aiding in the defense by advising plaintiff's counsel and also testifying in its behalf.
(5) That upon final hearing the said Reuben Bailey, by a decree of the circuit court of Leslie county, recovered all of said trees by virtue of his adverse title, which was adjudged to be superior to that under which the defendant in this case claimed and had sold the trees to Cross under whom plaintiff claimed title. That plaintiff herein took an appeal from the decree of the circuit court of Leslie county to the highest court of the state of Kentucky, and by that court the judgment and decree of the trial court was affirmed, and plaintiff evicted and deprived of all of said trees.
(6) That on May 5, 1908, the plaintiff filed an action in the circuit court of Leslie county, Ky., against the defendant to recover as a remote covenantee its damages for the breach of the covenant. That it claimed as damages the original purchase money and interest thereon from the date of payment, $150 attorney's fees, and $261.38 costs paid out in the suit against it by Reuben Bailey taxed in the circuit court and Court of Appeals.
(7) That upon the filling by plaintiff of the complaint the clerk of the circuit court of Leslie county issued a writ of summons in the manner and from prescribed by the laws of Kentucky, for the defendant, advising him of the pendency of the suit in said court, which said writ was directed to the sheriff of Knott county, state of Kentucky, and by him served on the defendant in person in the county of Knott, and afterwards returned to the circuit court of Leslie county with a return of the sheriff stating that fact.
(8) That the writ was actually served on the plaintiff personally in Knott county by the sheriff of said county on the 9th day of May, 1908.
(9) That at the time the said writ was served on the defendant by the sheriff of Knott county in the county of Knott he was not a resident of Leslie county, but a resident of Knott county, where he had been residing for several years prior thereto, never having resided in Leslie county.
(10) That at the October term, 1908, of the circuit court of Leslie county, that cause came on for hearing, and defendant making default by failing to enter an appearance or to plead, answer, or demur, judgment by default was rendered by the court on October 7, 1908, the judgment reciting, as a finding made by the court, 'that the defendant, J. M. Bailey, was duly and personally served with summons herein in Knott county, Ky., more than 20 days before the first day of the term of the present court, and that said defendant has failed to answer or make any defense herein. ' On the 9th day of October, 1908, a day of the same term of the court, a trial on the default was had, and judgment rendered against the defendant in favor of the plaintiff for the sum of $2,002.14, with 6 per cent. interest from rendition, and the costs of the suit, which were taxed at $9.60.
(11) That said judgment has never been modified, set aside, or in any way satisfied, but is still in full force, and that nothing has been paid thereon.
(12) That the circuit courts of Kentucky are courts of record and have general jurisdiction.
(13) That there is nothing due to the defendant from the plaintiff on account of the matters set up in his claim for set-off.
Rose, Hemingway, Cantrell & Loughborough, for plaintiff.
F. T. Vaughan, Palmer Danaher, and U. M. Meade, for defendant.
(after stating the facts as above). In the presentation of this cause, counsel confined themselves strictly to those questions of law which are debatable for a want of harmony among the adjudicated cases, agreeing on others which are well settled, thereby relieving the court of including in its opinion matter which would only be a repetition of well-settled principles of law. Such conduct of counsel is commendable and worthy of emulation by members of the bar generally.
They agree that, in an action on a judgment of another state, want of jurisdiction of the court which rendered the judgment, either of the subject-matter or the person of the defendant, may be shown and the judgment collaterally attacked even if it is a judgment of a superior court of record of general jurisdiction, and contains recitals of proper service of process or appearance of the defendant; but, if the court rendering the judgment had jurisdiction of the subject-matter and the persons, its judgment is conclusive as to all matters and defenses which might have been pleaded or litigated, although not pleaded or litigated.
They also agree that under the Constitution and laws of the state of Kentucky there is a circuit court in each county of the state, and that these courts are superior courts of record of general jurisdiction, subject to some limitations, which, so far as they affect the issues in controversy in this cause, will be hereinafter set forth. Nor is there any controversy between counsel as to the jurisdiction of the circuit court which rendered the judgment of the subject-matter; it being conceded that the court had jurisdiction of the subject-matter, regardless of whether the action is local or transitory. The only question on which counsel differ is whether the court had jurisdiction of the person of the defendant, the action having been instituted in, and the judgment rendered by, the circuit court of Leslie county, the defendant not being at the time a resident of that county, nor served with process therein, he being in fact a resident of Knott county of the same state, where he was served with a writ of summons by the sheriff of that county, as shown by the eighth and ninth findings of facts herein. The provisions of the Civil Code of Practice of the state of Kentucky, so far as they are applicable to the issues involved herein, as are follows (title 5):
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N.Y. Cent. R. Co. v. Hudson County
...action is by a remote grantee it is a real action, and the venue must be laid in the county where the estate lies." Burt, etc., Lumber Co. v. Bailey (C.C.) 175 F. 131, 137. Examining the authorities in this state, the first case referred to by the complainant is Ward v. Holmes, 7 N.J.Law, 1......