Kaufman v. Garner

• Decision Date: 01 November 1909
• Citation: 173 F. 550
• Parties: KAUFMAN v. GARNER.
• Court: U.S. District Court — Western District of Kentucky

173 F. 550

KAUFMAN v. GARNER.

United States Circuit Court, W.D. Kentucky.

November 1, 1909

N. L Goldsmith and Fairleigh, Straus & Fairleigh, for plaintiff.

E. E Richards and O'Neal, & O'Neal, for defendant.

EVANS District Judge.

On July 16, 1909, the plaintiff's intestate and daughter, a child of six years of age, was run over and killed by defendant at Tenth and Market streets, in the city of Louisville. On the -- day of July, 1909, as stated in the plaintiff's petition, he was appointed and qualified as administrator of his child's estate. While the date is left blank in the petition, the pleading seems to have been sworn to on July 17th. It appears from the affidavits filed that a policeman saw the accident and at once arrested the defendant, who was taken before the proper authorities of the city. This was not done at the instigation, nor with the knowledge, of the plaintiff. On the 17th of July the defendant appeared in the police court, and, his case being assigned to July 29th for examination, he was required to and did give bond for his appearance on that day. On July 28th the plaintiff's petition, which, as we have seen, had been verified by the plaintiff's oath on July 17th, was filed in the Jefferson circuit court, and on that day a summons was issued thereon in due form by the clerk, and placed in the hands of the sheriff of Jefferson county for service. On the next day, the defendant being in the courtroom of the police court pursuant to the requirements of his bond, and awaiting the call of his case, was then and there served by the sheriff with process in this case, and that officer made return on the summons as follows:

'Executed July 29, 1909, on W. S. Garner, by delivering to him a copy of the within summons. Chas. L. Scholl, S.J.C., by Matt. Chambers, D.S.'

For some reason the plaintiff, on July 29th, had an alias summons in the case issued by the clerk, which was also placed in the hands of the sheriff, and that officer in due form by written indorsement thereon authorized Robert Halley, as special bailiff, to execute the summons. Halley, under oath, made return on the writ in this language:

'Executed the within summons on July 29, 1909, by reading the same to the defendant, W. S. Garner, and attempting to deliver to him a copy of same. The said W. S. Garner refused to permit said copy of said summons to be delivered to him, whereupon I laid said copy of said summons on the floor of the automobile in which said W. S. Garner was then and there seated, and directed his attention to same. The said Garner stated that he would not accept said summons and resisted the service of same.'

It appears, and the court finds, that the last service was made after the defendant had been held over by the police court to answer in the circuit court on October 29, 1909, and while, with his counsel, he was on his way to find his surety, which he must do in order to give the required bond, and thus be released from potential, if not actual, custody. Upon this occasion his counsel advised him not to receive the summons, and he refused accordingly. It does not appear that plaintiff's attorney, Mr. Goldsmith, appeared in the police court on the 17th; but he did appear therein and assist the proper prosecuting attorney in the examining trial on July 29th, at which time, as we have seen, the defendant was held over to October 29th, to then answer any indictment that might be found against him in the circuit court, which alone, under the Kentucky law, had jurisdiction of the crime of murder or of manslaughter; the police court only having jurisdiction in such cases to discharge, commit, or hold to bail after an examination into the facts. It does not appear that the plaintiff or his attorney in any way procured the coming into Kentucky of the defendant for the purpose of getting service upon him of process in this action.

The defendant, who at all the dates mentioned was, and who continuously for many years before had been, a citizen of the state of Illinois, specially appeared for the purpose in the state court, and upon his petition, which showed him to be a citizen of Illinois and the plaintiff to be a citizen of Kentucky, removed the case to this court. Upon docketing the cause here, he moved the court to quash the returns upon the two summonses, and the motion has been elaborately and ably argued by counsel.

Inasmuch as the defendant was voluntarily in Kentucky when the accident to plaintiff's intestate occurred, if he had been served with process before he left Jefferson county, Ky., the matter might possibly have been easily disposed of; but neither process was so served. Neither summons was executed upon the defendant until he subsequently came back, in pursuance to the stipulations of his bond, to appear in the police court of Louisville on the 29th of July, and then the services were both made before he was finally released from his duty of further attendance upon that court, namely, before he had given the required bail for his appearance in the circuit court on October 29th. It clearly appears that the only purpose of the defendant in coming to Kentucky upon this occasion, and of being here on the 29th of July, was to meet the requirements of his bond to then appear for examination in the police court on the charge of murder, which had been made against him.

The motion of the defendant has raised a very interesting and important question, which the court has very carefully considered.

1. It is urged that this court, upon that question, should be controlled by the rule established by the Court of Appeals of Kentucky, and it is insisted that that rule is that, where a defendant is served with process under such a state of fact as appears in this instance, he is properly before the court by a service which was not made under circumstances that would require it to be set aside. We are quite sure that the Court of Appeals has never established, nor meant to establish, a rule applicable to this case, either by its decisions in Lewis v. Miller, 115 Ky. 623, 74 S.W. 691, and Linn v. Hagan, 87 S.W. 763, 27 Ky.Law Rep. 996, or in any other case. However, without distinguishing those cases in detail, for present purposes we may assume that they establish a definite rule in Kentucky for cases where the person served with process claimed to have come to this state (though without being subpoenaed) to testify in his own case; but does it follow, either that the Court of Appeals would have held that those decisions would embrace a case like this, or that this court is required to enforce in this radically different case any rule announced in them? If the state of Kentucky had enacted any statute providing for the service of process upon persons under circumstances such as this case presents, and the Court of Appeals of the state had interpreted the language of that statute, the federal courts, in cases where the decision was applicable, might be bound to accept that interpretation. Confessedly, the state of Kentucky has enacted no statute which directly or indirectly provides for a case where a person is served with a summons while appearing in and attending upon any court in which he is charged with a criminal offense. Nor do we find that the Court of Appeals of the state has ever passed upon the question involved in this case, and we think it has never done so.

Section 721 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 581) provides that:

'The laws of the several states, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in

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