Gavenda Bros., Inc. v. Elkins Limestone Co., 12012

• Decision Date: 22 November 1960
• Docket Number: No. 12012,12012
• Citation: 145 W.Va. 732,116 S.E.2d 910
• Court: West Virginia Supreme Court
• Parties: GAVENDA BROTHERS, INC. v. ELKINS LIMESTONE COMPANY, Inc.

Page 910

116 S.E.2d 910

145 W.Va. 732

GAVENDA BROTHERS, INC. v. ELKINS LIMESTONE COMPANY, Inc.

No. 12012.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 13, 1960.

Decided Nov. 22, 1960.

Syllabus by the Court

1. Under Section 1, Article IV, of the Constitution of the United States, a valid judgment of a court of another state is entitled to full faith and credit in the courts of this State.

2. The limits on the exercise of jurisdiction are not mechanical or quantitative, but consist of the requirement that statutory provisions conferring jurisdiction upon the courts of any state must be fair and reasonable in the circumstances and must give to the defendant adequate and realistic opportunity to appear and be heard in his own defense, and that statutory provisions conferring jurisdiction upon courts of a state to enter personal judgments upon personal service of process outside the state, meet the requirements of due process when the defendant to be served outside the state has had contacts with the state of the forum which make it reasonable that he be required to defend the particular action brought against him in that state.

3. An Illinois statute which, in part, provides that any person, whether or not a citizen or resident of that state who, in person or through an agent, within that state, transacts business, commits a tortious act, uses, owns or possesses any real estate, or contracts to insure any person, property or risk, by reason of such acts submits to the jurisdiction of the courts of that state as to any cause of action arising from any such acts, and which also provides that service of process upon any person who is subject to the jurisdiction of the courts of that state may be made by personally serving the summons upon the defendant outside the state with the same force and effect as though such summons had been served within the state, is not violative of the due process clause of the Constitution of the United States and the Constitution of this State and is constitutional and valid, in its application to the facts of this case, which show that the defendant, a West Virginia corporation, by its representative, in Fulton County, Illinois, entered into an agreement with the plaintiff, an Illinois corporation, to purchase from the plaintiff certain merchandise, owned by it and located in that state, and executed and delivered notes for the unpaid portion of the purchase price of such merchandise, which was either delivered to the defendant in Illinois or shipped to and received by it in Randolph County, West Virginia, and after default by the defendant in the payment of such purchase money, a representative of the defendant was personally served in Randolph County, West Virginia, with process in an action instituted by the plaintiff in Fulton County, Illinois, to recover the unpaid portion of such notes and a reasonable attorney fee.

4. Under the full faith and credit clause of Section 1, Article IV, of the Constitution of the United States, the courts of this State may not refuse to enforce a valid judgment of a court of another state even though it involves some contravention of the public policy of this State.

Hyer, Gibson & Talbott, Elkins, for plaintiff in error.

Higginbotham & Graziani, Elkins, for defendant in error.

HAYMOND, Judge.

This is an action of debt instituted in the Circuit Court of Randolph County in 1958, in which the plaintiff, Gavenda Brothers, Inc., an Illinois corporation, seeks to recover from the defendant, Elkins Limestone Company, Inc., a West Virginia corporation, the sum of $1,293.31, with interest at the rate of 5% on $1,259.56 of that sum from September 23, 1957. The action is based upon a judgment obtained by the plaintiff against the defendant in the Circuit Court of Fulton County, Illinois, for $1,259.56 and taxable costs of $33.75.

To the declaration the defendant filed an amended special plea in which it challenged the validity of the judgment on the ground that the Circuit Court of Fulton County, Illinois, was without jurisdiction to enter a judgment against the defendant, a West Virginia corporation, whose principal place of business is in Randolph County, West Virginia. The amended special plea alleges that the defendant has never been a resident of the State of Illinois or of Fulton County in that State, that neither the defendant nor any of its agents or employees was ever in or engaged in business in the State of Illinois, that the defendant was not authorized to do business in that State, that the defendant was not amenable or subject to the jurisdiction of the court in which the judgment was rendered, and that it was not served with process in West Virginia and did not have legal notice of the pendency of the action in the Illinois court.

The plaintiff filed a replication to the amended special plea of the defendant in which it alleged that the defendant by its agent in Fulton County in the State of Illinois executed a conditional sales contract and purchased from the plaintiff certain tangible personal property then in that county and state and executed and delivered to the plaintiff certain notes representing a part of the purchase price for such property; that by reason of such transaction in Fulton County, Illinois, the defendant became subject to the jurisdiction of the Circuit Court of Fulton County, Illinois; and that the defendant was personally served in the State of West Virginia with process issued in the action instituted by the plaintiff in the Circuit Court of Fulton County, Illinois.

The material facts, which are not disputed, were submitted to the circuit court in lieu of a jury by a written stipulation between the attorneys for the respective parties. Upon the facts set forth in the stipulation the circuit court, by order entered July 3, 1959, rendered judgment for the plaintiff for $1,293.31 with interest on $1,259.56 of that amount at 5% from September 23, 1957, and costs. To that judgment this Court granted this writ of error and supersedeas upon the application of the defendant.

On December 3, 1956, in Fulton County, Illinois, the defendant, represented by its president, entered into a conditional sales contract with the plaintiff for the purchase of certain personal property of the plaintiff located in that county and state for the purchase price of $5,330.00. Of that amount $1,830.00 was payable upon the delivery of the property and the residue of $3,500.00 was represented by seven notes in the principal sum of $500.00 each, due in one, two, three, four, five, six and seven months after date, with interest at 5%. Each of these notes contained a provision which authorized any attorney of any court to appear for the defendant in any court at any time after maturity and confess judgment against it in favor of the holder of such note for the amount due on such note and costs and a reasonable attorney fee. All the notes were executed and delivered by the defendant to the plaintiff in Fulton County, Illinois. The property purchased by the defendant was delivered to it by the plaintiff in Illinois or shipped to the defendant and received by it in Randolph County, West Virginia. The defendant made default in the payment of the notes due in three, four and seven months after date in the principal amount of $1,094.56 and, in the action instituted August 15, 1957, in the Circuit Court of Fulton County, Illinois, judgment was rendered against the defendant for that amount and an attorney fee of $165.00, or the total sum of $1,259.56 by order entered September 23, 1957. The summons in that action was not served upon the defendant in the State of Illinois but was personally served upon the president of the defendant in Randolph County on August 20, 1957. The defendant did not appear in the action instituted against it in the Circuit Court of Fulton County, Illinois, and judgment was rendered against the defendant by default.

The action in the Illinois court was based upon a statute of that State which rendered persons who engaged in certain enumerated acts subject to the jurisdiction of the courts of that State. That statute, known as the Civil Practice Act, as amended, in Section 17 contains these provisions:

'(1) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits said person, and, if an individual, his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of said acts:

'(a) The transaction of any business within this State;

'(b) The commission of a tortious act within this State;

'(c) The ownership, use, or possession of any real estate situated in this State;

'(d) Contracting to insure any person, property or risk located within this State at the time of contracting.

'(2) Service of process upon any person who is subject to the jurisdiction of the courts of this State, as provided in this section, may be made by personally serving the summons upon the defendant outside this State, as provided in this Act, with the same force and effect as though summons had been personally served within this State.

'(3) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him is based upon this section.

'(4) Nothing herein contained limits or affects the right to serve any process in any other manner now or hereafter provided by law.'

Section 16 of the same statute provides, in part, that: 'Personal service of summons may be made upon any party outside the State. If upon a citizen or resident of this State or upon a person who has submitted to the jurisdiction of the courts of this State, it shall have the force and effect of personal service of summons within this State; otherwise it shall have the force and effect of service by publication. * * *.'

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