Ex parte Cullinan

• Decision Date: 27 November 1931
• Docket Number: 8 Div. 340.
• Citation: 139 So. 255,224 Ala. 263
• Parties: EX PARTE CULLINAN ET AL.
• Court: Alabama Supreme Court

139 So. 255

224 Ala. 263

EX PARTE CULLINAN ET AL.

8 Div. 340.

Supreme Court of Alabama

November 27, 1931

Rehearing Denied Feb. 4, 1932.

Original petition of J. S. Cullinan and L. B. Coppinger for mandamus to Hon. A. E. Hawkins, as Judge of the Ninth Judicial Circuit.

Mandamus awarded.

Cabaniss & Johnston, of Birmingham, and J. A. Lusk, of Guntersville for petitioners.

Street & Bradford, of Guntersville, for respondent.

GARDNER J.

J. S Cullinan and L. B. Coppinger, nonresidents of this state and residents of Texas and New York, respectively, were made (together with several named corporations) parties defendant to an original and amended bill filed by W. L. Smith in the Marshall county circuit court; and J. S. Cullinan was a party defendant to the cross-bill as amended filed by O. D. Street and W. R. Bradford.

The petition here presented discloses that in the proceedings referred to personal judgments as for a moneyed demand is sought against them, and jurisdiction of the court attempted to be obtained by publication and registered mail only and without personal service. They appeared specially and for that purpose only, and moved to quash the purported service on them by publication and registered mail. The ruling of the chancellor denying such motion is here sought to be reviewed by this mandamus proceeding.

That petitioners have pursued the proper remedy is, as we read the brief, conceded by counsel for respondent. Ex parte Hill, 165 Ala. 365, 51 So. 786; Ex parte Tower Mfg. Co., 103 Ala. 415 15 So. 836; State ex rel. St. Peters M. Baptist Church v. Smith, 215 Ala. 449, 111 So. 28; Johnson v. Westinghouse, Church, Kerr & Co., 209 Ala. 672, 96 So. 884.

"The general rule, since the decision of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, is that a personal judgment or decree rendered by a State court against a non-resident of the State upon whom personal service was not perfected, and who did not appear and submit to the jurisdiction of the court, is void." Margaret K. Stoer et al. v. Ocklawaha River Farms Co. et al. (Ala. Sup.) 138 So. 270, present term. The objection, in such cases, by the nonresident to the jurisdiction of the court is not a technical one as suggested in brief by counsel for respondent, but is an assertion of a fundamental constitutional right which has been zealously guarded by the courts both state and federal. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565.

Later decisions are to the effect that any rule of court or state statute intended to abridge the right are not to be followed by the federal courts; the question being one which concerns the due process clause of the Fourteenth Amendment to the Federal Constitution. Davidson Bros. Marble Co. v. U.S. ex rel. Gibson, 213 U.S. 10, 29 S.Ct. 324, 53 L.Ed. 675. The following of our own decisions, among many others, which might be cited, are in harmony with those of the federal courts. Margaret K. Stoer et al. v. Ocklawaha River Farms Co. Long v. Clark,

201 Ala. 454, 78 So. 832; Cowikee Mills v. Georgia-Alabama Power Co., 216 Ala. 221, 113 So. 4; Sweeney v. Tritsch, 151 Ala. 242, 44 So. 184; Quill v. Carolina Portland Cement Co., 220 Ala. 134, 124 So. 305.

The force of these authorities is not here questioned, but it is insisted petitioners had made a general appearance in the cause, and thereby voluntarily submitted themselves to the jurdisdiction of the court. In Rorick v. Stilwell, 133 So. 609, the Florida Supreme Court, in discussing a similar question, held (and we think correctly so) that in every case where it is claimed that service of process has been waived that fact ought to be clearly established and shown on the record.

The chancellor in his decree of July 28, 1931, denying petitioners' motion, pointed to the action of petitioners on November 10, 1930, requesting of the register further time in which to answer or demur or file other motions, and the register's order granting such extension, as conclusively disclosing "an unconditional personal appearance in this cause."

In Oliver v. Kinney, 173 Ala. 593, 56 So. 203, 205, speaking to the question of waiver, the court said: "It is obvious that an appearance made for a special purpose ought not to be held to give the court jurisdiction over the defendant, except to the extent of hearing and determining the question which he specially presents to it for consideration." And in Grigg v. Gilmer, 54 Ala. 425, it was held that, although the entry on the margin of the docket of the court of the name of an attorney opposite the name of a party to a suit is accepted in practice as an appearance for such a party, yet the consequences resulting from such appearance thus made may be limited by the steps taken, or the pleadings subsequently interposed, and, if these have reference to the matter of service of process and irregularities in that regard, such an appearance will not be deemed a general appearance curing such defects. After all, it is a question of consent or a voluntary submission to the jurisdiction of the court. 4 Corpus Juris, 1317, 1318; Bacon v. Federal Reserve Bank (D. C.) 289 F. 513, 516; Pine Hill Coal Co. v. Gusicki (C. C. A.) 261 F. 974; Lowrie v. Castle, 198 Mass. 82, 83 N.E. 1118, 1120; Zabriskie v. Second Nat. Bank, 204 A.D. 428, 198 N.Y.S. 482, 484.

It is observed that petitioners' motion to quash discloses that the pleadings seek a personal judgment only against them as for a moneyed demand, and respondent's counsel insist such suggestion is inquiring into the merits of the cause, which in itself is a waiver of personal service and a submission to the jurisdiction of the court. 4 Corpus Juris, 1320. But merely directing attention of the court to the character of the suit is to only present a predicate for the motion made, and in no manner indicates an attack upon the merits of the cause. To hold otherwise would, in the language of Bacon v. Federal Reserve Bank, supra, "transform an objection to the jurisdiction into a waiver of the objection itself."

We may add also, in answer to a suggestion in brief for respondent, that it appears from the record, as we read it, as uncontroverted there has been no personal service. It is so alleged in the motion to quash, and nowhere denied or questioned, and so averred in the petition for mandamus, and not denied in the answer.

In State ex rel. St. Peters M. Baptist Church v. Smith, 215 Ala. 449, 111 So. 28, it was held that the answer of the respondent would be accepted as true to the extent it goes, but beyond that the court looks to the undisputed allegations of the petition.

Coming to the merits of the question presented by the petition and the ground upon which the chancellor based his denial of the motion, we are persuaded the record discloses no waiver of petitioners' rights as nonresidents to personal service and no evidence of a voluntary submission to the court's jurisdiction. Following publication of notice as to nonresident defendants to the original bill, petitioner Cullinan on September 6, 1929, filed his motion to quash, which motion was signed by counsel "appearing specially for the purpose of this motion only," and which was prefaced by the following language: "Comes J. S. Cullinan named as one of the respondents in the above styled cause, and appearing solely for the purpose of this motion, and without making a general appearance, and expressly limiting this his special appearance to the purpose of quashing the attempted service of process in this case on him, hereby moves the court to quash the service or attempted service of process upon him in this cause, and for grounds of such motion sets down and assigns the following." Among other grounds of the motion was the proceedings purported to bring the movant under the jurisdiction of the court "in violation of the Fourteenth Amendment of the Constitution of the United States." By decree of October 4, 1929, this motion was sustained, but only to the extent of that ground of the motion as to service by registered mail. The original and cross-bill were subsequently amended. That copies of these amendments were mailed to counsel who had appeared specially as previously indicated can have no bearing upon the merits of the question presented. Publication was had on the amended bill and cross-bill, and November 10, 1930, fixed as the date to plead, answer, or demur. Local counsel at Guntersville makes affidavit that he noticed the publication just two days prior to November 10th, and communicated with counsel at Birmingham, who advised him that the employment was only to resist any attempt to acquire jurisdiction, and that, as the time expired that day, further time should be obtained to file motion to quash.

There were other defendants represented by the same counsel, at least one of whom had appeared and interposed demurrers to the bill, and local counsel prepared the request for further time as applicable to each. The request for further time and the order of the register granting same appear in the report of the case, and a reference thereto, irrespective of the affidavits of local counsel in explanation thereof, will, we think, sufficiently disclose that the appearance was limited especially...