Manley v. Mayer

Decision Date06 February 1904
Docket Number13,332
Citation68 Kan. 377,75 P. 550
PartiesREUBEN M. MANLEY, as Executor, etc., v. WILLIAM G. MAYER
CourtKansas Supreme Court

Decided January, 1904.

Error from Atchison district court; W. T. BLAND, judge.

Judgment affirmed.

SYLLABUS

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.

MASON J. All the Justices concurring.

OPINION

MASON, J.:

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:

"There seems to be no doubt that a state is not restrained by the national constitution from authorizing suits to be brought in its courts against foreign executors and administrators; and that service of process by attachment of property within its jurisdiction, and notice by publication to the non-resident foreign executor or administrator, in accordance with the local statute, will confer jurisdiction over such property and will justify its sale upon execution. . . .Such statutes seem to be eminently just and proper. They afford an easy means of preventing the withdrawal of local assets before the claims of local creditors have been satisfied. Local creditors can protect themselves by the simple process of attachment and publication. Their constitutionality seems clear. Such state process is not contrary to due process of law, as against the defendant's title to the property attached, even if he does not appear in the proceedings; for the preliminary attachment and publication subject the property to the control and jurisdiction of the court, which is therefore authorized, upon due proof of the plaintiff's claim, to order its sale, and thereby to divest the title of the non-resident defendant."

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.)

The claim is made that the statute discriminates against the non-resident executor in three ways: (1) In permitting suit to be brought against him in the district court, whereas resident executors can only be sued in the probate court; (2) in permitting specific assets under his control to be segregated for the benefit of a particular creditor, whereas resident executors are allowed to apportion the proceeds of the property equitably among all the creditors; (3) in permitting him to be sued in attachment, upon no other ground than that he is a non-resident. The first contention is unsound in fact. The resident executor, like the nonresident may be sued in the district court. (Gen. Stat. 1901, § 2891.) The second contention seems based upon solicitude for the rights of other creditors rather than for those of the executor. Non-resident creditors are afforded the same privilege of attachment as resident. Whether in a controversy between two attaching creditors the ordinary rules of priority would be affected by the consideration that the property was a part of the estate of...

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