Courtney v. Pradt

• Decision Date: 25 January 1908
• Docket Number: 1,772.
• Citation: 160 F. 561
• Parties: COURTNEY v. PRADT et al.
• Court: U.S. Court of Appeals — Sixth Circuit

160 F. 561

COURTNEY v. PRADT et al.

No. 1,772.

United States Court of Appeals, Sixth Circuit.

January 25, 1908

A. P Humphrey and W. B. Dixon, for plaintiff in error.

H. C Gillis and Neal Brown, for defendants in error.

Before LURTON and RICHARDS, Circuit Judges, and KNAPPEN, District judge.

KNAPPEN District Judge.

The plaintiff in error, a citizen of Kentucky, brought suit in the circuit court for Powell county, Ky., by attachment under section 194 of the Kentucky Code of Practice, which gives the plaintiff the right, at or after the commencement of an action, to an attachment against the property of the defendant, including garnishees, as security for the satisfaction of judgment in an action for the recovery of money against a nonresident defendant. The defendants are all nonresidents of Kentucky. The defendant Louis A. Pradt is executor, and the other defendants legatees and beneficiaries, under the will of Merritt B. Atwater, who died a citizen of and domiciled within the state of Wisconsin, by whose courts the will has been admitted to probate and letters testamentary issued to the executor named; the estate not being closed.

The cause of action is upon an alleged indebtedness from the testator and William C. Atwater, as copartners, to the plaintiff. The will has not been proven in Kentucky, nor has any administration, ancillary or otherwise, been had therein. No service, actual or constructive, was had upon and no jurisdiction obtained over any of the defendants, unless such jurisdiction was obtained over the defendant Louis A. Pradt, executor. As to him, constructive service was attempted to be had by garnishing the Atwater & Allen Land & Lumber Company, a Wisconsin corporation, on account of an alleged indebtedness from said company to said executor, by way of a dividend declared since the testator's death upon stock in said company held by him, and since his death by his executor, as such. By reason of diverse citizenship of the parties the suit was removed to the United States Circuit Court. The defendant Pradt, executor, moved to dismiss the suit for lack of jurisdiction in the Kentucky courts to maintain suit against him upon the cause of action mentioned, also for lack of jurisdiction over the garnishee defendant, and for various irregularities in the attachment proceedings. The suit was dismissed.

To review this judgment the plaintiff, because of uncertainty whether the action is to be treated as one at law or in equity, has taken both an appeal and a writ of error. The uncertainty arises from the fact that under the Kentucky procedure the plaintiff is required to file a petition in equity where attachment is sought against nonresident defendants, and this suit was thus, in the state court, in equity. The difference between causes of action at law and in equity is matter of substance, and not of form. The suit being upon a legal right of action, the fact that by the state procedure the remedy by attachment is given in equity does not make the cause an equitable one in the federal courts. Highland Boy Gold Min. Co. v. Strickley, 116 F. 852, 54 C.C.A. 186; Files v. Brown, 124 F. 133, 59 C.C.A. 403; Board of Councilmen v. Deposit Bank, 124 F. 18, 59 C.C.A. 538. The appeal will be dismissed, and the writ of error retained. Hurst v. Hollingsworth, 94 U.S. 111, 24 L.Ed. 31.

The question which first claims attention is whether the plaintiff has a right of action in the courts of Kentucky upon the claim in suit against the defendant, as a foreign executor, the defendant personally being likewise a nonresident of the state. For unless the defendant, as such foreign executor, could have been sued in Kentucky for the cause of action in question, had he been within the jurisdiction of the court and personally subject to process, this suit cannot be maintained. Attachment suits, generally speaking, do not attempt to create legal rights. They merely provide remedies for the enforcement of existing rights of action. As expressed in C., R.I. & P. Ry. Co. v. Sturm, 174 U.S., at page 715, 19 Sup.Ct., at page 799 (43 L.Ed. 1144):

'The essential service of foreign attachment Laws is to reach and arrest the payment of what is due and might be paid to a nonresident to the defeat of his creditors.' There is nothing in the language of the statute here involved which indicates an intention to create a new legal right as against a foreign executor. The only provision which is pertinent here is the following:

'The plaintiff may, at or after the commencement of an action, have an attachment against the property of the defendant, including garnishees, as is provided in section 227, as a security for the satisfaction of such judgment as may be recovered-- 1. In an action for the recovery of money against (1) a defendant, who is a foreign corporation or a nonresident of the state.'

This provision is found under the title 'Provisional Remedies.' The remedy is given as well after as at the time of the commencement of action. The cases of C., R.I. & P. Ry. Co. v. Sturm, supra, Harris v. Balk, 198 U.S. 215, 25 Sup.Ct. 625, 49 L.Ed. 1023, and Pittsburg, etc., Ry. Co. v. Bartels, 108 Ky. 216, 56 S.W. 152, furnish no authority for the proposition that one who would not be subject to suit in the courts of a state if personally present, or personally served with process therein, is made so subject by a provision for attachment of the kind here in question. Each of the cases referred to involved the effectiveness of a judgment against a garnishee defendant under foreign attachment proceedings. The garnishee defendant was held garnishable in the foreign jurisdiction because he was otherwise suable there by his creditor. The right of the plaintiff in the attachment suit to sue his foreign debtor in the courts of the plaintiff's residence was expressly recognized; and there is nothing in either of the cases cited which lends color to the proposition that a defendant, not otherwise suable, could be subjected to suit by attachment merely because such process was authorized 'at or after the commencement of an action. ' Nor is there anything to such effect in the cases of Peterson v. Poignard, 6 B.Mon. (Ky.) 570, or in Hefferman v. Forward, Id. 567. In each of these cases the right to suit existed independently of the provision for attachment. The fact that in several states, where an administrator or executor is by statute subject to suit, process of attachment is provided for is not material to the question presented here.

Coming back, then, to the original question of the right of the plaintiff to sue the defendant as a foreign executor in the courts of Kentucky, we find the general rule well established by the decisions of the courts, both state and federal, that an executor or administrator cannot be sued in his representative character unless he is made liable by statute, either at law or in equity, in the courts of any state or country other than that in which he has received his appointment. Among the numerous authorities declaring this doctrine are Story on Conflict of Laws, Sec. 513; 1 Williams on Executors (7th Am. Ed.), page 428 and following; Dixon's Executors v. Ramsay's Executors, 3 Cranch, 319, 2 L.Ed. 453; Vaughan v. Northup, 15 Pet. 1, 10 L.Ed. 639; Noonan v. Braley, 9 Wall. 394, 17 L.Ed. 278; Johnson v. Powers, 139 U.S. 156, 11 Sup.Ct. 525, 35 L.Ed. 112; Hopper v. Hopper, 125 N.Y. 400, 26 N.E. 457, 12 L.R.A. 237; Mellus v. Thompson, 1 Cliff. 125, Fed. Cas. No. 9,405; Security Ins. Co. v. Taylor, 2 Biss. 446, Fed. Cas. No. 12,607.

In Story on Conflict of Laws, supra, it is said:

'It has hence become a general doctrine of the common law, recognized both in England and America, that no suit can be brought or maintained by any executor or administrator, or against any executor or administrator, in his official capacity, in the courts of any other country except that from which he derives his authority to act in virtue of the probate and letters testamentary or the letters of administration there granted to him. * * * If a creditor wishes a suit to be brought in any foreign country, in order to reach the effects of a deceased testator or intestate situated therein, it will be necessary that letters of administration should be there taken out in due form, according to the local law, before the suit can be maintained; for the executor or administrator appointed in another country is not suable there, and has no positive right to or authority over those assets, neither is he responsible therefor.'

In Dixon's Executors v. Ramsay's Executors, supra, Chief Justice Marshall held that an executor could not maintain a suit in the District of Columbia upon letters testamentary, granted in a foreign country, saying:

'It is not and cannot be denied that he sues by virtue of his letters testamentary; and consequently, in this particular, he comes within the principle which was decided by the court in the case of an administrator.'

In Vaughan v. Northup, supra, Justice Story held, citing Dixon's Executors v. Ramsay's Executors, supra, that an administrator appointed by the courts of one state is not liable to be sued, in the District of Columbia, in his official character, for assets lawfully received by him in that district, by virtue of his original letters.

In Noonan v. Braley, supra (at page 400 of 9 Wall. (17 L.Ed. 278)), Justice Field, in deciding that an administrator appointed in one state cannot, by virtue of such appointment, maintain an action in another state, in the absence of a statute of the latter state giving effect to that appointment, to enforce the obligation to his intestate said:

'Upon this point the law is well settled. All the cases on the subject are in one way. In the absence of any statute

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