Manley v. Mayer
Decision Date | 06 February 1904 |
Docket Number | 13,332 |
Citation | 68 Kan. 377,75 P. 550 |
Parties | REUBEN M. MANLEY, as Executor, etc., v. WILLIAM G. MAYER |
Court | Kansas Supreme Court |
Decided January, 1904.
Error from Atchison district court; W. T. BLAND, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. CONSTITUTIONAL LAW -- Attachment against Non-resident Executor. Section 203 of the executors' and administrators' act (Gen. Stat. 1901, § 3009) authorizes the enforcement of the contract obligation of a non-resident, who died owning real estate in Kansas, by attachment and sale of such real estate in an action brought against the non-resident executor. This statute, as so construed, is not in conflict with the provisions of the state or federal constitutions forbidding discrimination against, or abridgment of, the privileges and immunities of citizens of other states.
2. CONSTITUTIONAL LAW -- Corporations -- Dissolution Act of 1883 Held Valid. The amendment of 1883 to section 40 of the corporation act (Gen. Stat. 1889, P 1200), providing that, for the purpose of enabling creditors to prosecute actions against stockholders, a corporation should be deemed dissolved whenever it had suspended business for more than one year, was not obnoxious to the provision of the state constitution requiring the subject of an act to be expressed in its title, or to that forbidding the amendment to a section unless the new section contain the entire section as amended.
3. CORPORATIONS -- Judgment by Confession of Vice-president Held Valid. A judgment by confession against a corporation, based upon its personal appearance by its vice-president and presiding member, and upon an affidavit made by him setting out his capacity and the facts regarding the indebtedness, will not be held void upon its face when interposed by its owner as a defense in an action brought to enforce his liability as a stockholder in the corporation.
4. CORPORATIONS -- Personal Relation of Vice-president to Plaintiff Immaterial. A judgment by confession against a corporation in favor of the executor of an estate is not rendered void for all purposes by the fact that it is based upon an appearance and affidavit made by an officer who as an individual is interested in the estate as a legatee.
5. JUDGMENTS -- Death of Plaintiff--Order of Revivor Good for Five Years without Execution. A judgment in this state becomes dormant by the death of the party. Its revivor in the name of the representative of such party restores the judgment to full force and gives it effect for the ensuing period of five years without execution, to the same extent as a revivor in the case of a judgment that has become dormant for want of an execution.
L. F Bird, for plaintiff in error.
Jackson & Jackson, for defendant in error.
OPINION
William G. Mayer sued Reuben M. Manley, as executor of the will of George Manley, deceased, under the provisions of sections 1200 and 1204 of the General Statutes of 1889 (now repealed), authorizing creditors of dissolved corporations to bring actions against stockholders upon their individual liability, and recovered a judgment, which the defendant seeks to reverse. George Manley, a resident of New Jersey, died owning real estate in Kansas and jurisdiction was obtained by attaching this property as that of the executor, also a non-resident. This was done under the authority of section 3009, General Statutes of 1901, which reads:
"An executor or administrator duly appointed in any other state or country may sue or be sued in any court in this state, in his capacity of executor or administrator, in like manner and under like restrictions as a non-resident may sue or be sued."
It is claimed that this statute was only intended to authorize a non-resident executor to be sued as a resident executor might be; that a creditor of the estate of a decedent, however his claim may be established, can only collect it by sharing in due proportion with other creditors in the proceeds of an orderly administration under the direction of the probate court, and not by seizing and selling specific property; that the title to the real estate was in the devisees under the will, not in the executor, and that it could not be levied on under process against the latter. These arguments would appeal to the court with much force if the questions presented were new. But they are not. They have been determined adversely to the contentions of plaintiff in error in a series of decisions by this court commencing with Cady v. Bard, 21 Kan. 667, decided in 1878. (See Manley v. Park, 62 Kan. 553, 64 P. 28, and cases there cited.)
So far as it relates to the interpretation of the statute this consideration should be conclusive. A judicial construction placed upon its language by a united court, over a quarter of a century ago, and repeatedly affirmed without dissent, must be deemed to have received the sanction of legislative approval. Granting that the court in the first instance mistook the purpose and intent of the act, there has been so abundant opportunity for the lawmaking power to give further expression to its will that its failure to act amounts to a ratification. With respect to the validity of the law, as so construed and accepted, the weight to be given the earlier decisions is less controlling and depends upon the force of the reasoning by which they are supported.
It is urged that under the construction given it the statute conflicts with section 17 of the Kansas bill of rights, with section 2 of article 4 of the federal constitution, and with the fourteenth amendment to it, in that it makes a distinction between citizens of Kansas and those of other states, denying to the latter privileges and immunities of the former, and depriving them of property without due process of law. The statute is an unusual one. It originated in this state at the time of the revision of 1868, when the chapter regarding executors and administrators was adopted from Ohio. The corresponding section there (Rev. Stat. Ohio, 1860, vol. 1, ch. 43, § 236) provided only for suits by, not against, foreign executors and administrators. It was transplanted with only so much change of language as authorized them to be sued, as well as to sue, "in like manner and under like restrictions as a non-resident."
If any similar provision exists elsewhere, its validity seems not to have been drawn in question. The territory of Washington formerly had a statute expressly authorizing the attachment of the property of nonresident executors, but it was repealed before being passed upon, although it was referred to in Barlow & Shepherd v. George Coggan, 1 Wash. Terr. 257. In Craig v. Railroad Co., 2 Ohio N.P. 64, the constitutionality of a statute authorizing non-resident executors to be sued was affirmed, the opinion citing Cady v. Bard, supra. The same case is cited with approval in Woerner's American Law of Administration, volume 1, section 163, and in Reno on Non-residents, section 59, where it is said:
In Manley v. Park, 62 Kan. 553, 64 P. 28, the question of the constitutionality of the statute was discussed to some extent, but not definitely passed upon for the reason that it was treated as not having been raised before judgment. It was sought to have this case reviewed by the United States supreme court, but the judgment was there affirmed on the same ground. (Manley v. Park, 187 U.S. 547, 23 S.Ct. 208, 47 L.Ed. 296.)
To continue reading
Request your trial-
Moffett v. Commerce Trust Co.
... ... 159; Haney v. Thompson, 339 Mo. 505; Woodson v ... Railroad, 110 Mo.App. 208; Postelthwaite v ... Ghiselin, 97 Mo. 420; Manley v. Park, 62 Kan ... 553; Westerman v. Westerman, 121 Kan. 501; ... Boyles v. Emery, 153 P.2d 936; Coleman v ... Apple, 298 F. 718; Foltz ... 22-1308, R.S. Kan.; Clark v. Moffett, 136 Kan. 711; ... Cady v. Bard, 21 Kan. 667; Denny v ... Faulkner, 22 Kan. 89; Manley v. Mayer, 68 Kan ... 377; Sec. 59-1708, 1941 Supplement to the General Statutes of ... Kansas (L. 1939, Ch. 180, #138); In re Thompson's ... Estate, ... ...
-
Welborn v. Whitney
... ... See 25 ... R.C.L., p. 956, para. 212; McCain v. State Election ... Board, 144 Okl. 85, 289, P. 759; Manley v ... Mayer, 68 Kan. 377, 75 P. 550, 1 Ann.Cas. 825; ... Lowman & H. Co. v. Ervin, 157 Wash. 649, 290 P. 221; ... People v. Bloom, 193 N.Y ... ...
-
Kootz v. Wis. Tax Comm'n (In re Kootz' Will)
...by not amending the statute has accepted the statute with the court's construction incorporated therein. Manley v. Mayer, 68 Kan. 377, 379, 380, 75 P. 550 [1 Ann.Cas. 825]. Assuming that the court has power to modify or limit its former construction, and thus, in effect, amend the statute, ......
-
Dahlstrom v. Walker
... ... case, by its proper officer, may confess judgment without ... action. (15 R. C. L. 648; Manley v. Mayer, 68 Kan ... 377, 1 Ann. Cas. 825, 75 P. 550.) The power to confess ... judgment is included within the power to make contracts and ... ...