Manley v. Park

• Decision Date: 09 March 1901
• Docket Number: 11,833
• Citation: 62 Kan. 553,64 P. 28
• Parties: REUBEN M. MANLEY, as Executor, etc., v. RICHARD A. PARK
• Court: Kansas Supreme Court

64 P. 28

62 Kan. 553

REUBEN M. MANLEY, as Executor, etc., v. RICHARD A. PARK

No. 11,833

Supreme Court of Kansas

March 9, 1901

Decided January, 1901.

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

STATEMENT.

IN November, 1895, an action was commenced by the defendant in error against Wm. H. Risk, as executor of the last will of George Manley, deceased. The action was founded on certain debentures issued by the Kansas Trust and Banking Company, of which the decedent was a stockholder. The petition alleged that said company was an insolvent Kansas corporation organized to loan money, which had suspended business for more than one year; that Manley was a resident of Union county, New Jersey, at the time of his decease; that he died testate; that Risk had been designated in the will and had been subsequently duly appointed as executor and trustee of the estate of the decedent by the orphans' court of Union county. Afterward, in due course and regular form, R. M Manley was substituted as executor by said orphans' court, and as defendant in the court below, in lieu of Risk and said Manley, as such executor, filed an answer in said cause, to which reply was made. The plaintiff sought to charge the defendant, R. M. Manley, as executor, with liability as a stockholder of said insolvent trust company. The allegations of the petition are formal and voluminous. The debentures had not been reduced to judgment against the insolvent corporation which issued them.

An attachment was issued at the time the action was commenced and levied on lands held by the defendant as such executor situate in Atchison county, and service by publication was duly had. Afterward, and on the 13th day of December, 1897, the case was tried to the court, without a jury, and the plaintiff recovered judgment for $ 2463.07, and an order for the sale of the property attached was made. A motion for a new trial was filed and overruled, and the cause was brought here by petition in error and dismissed, on motion, without a hearing on the merits. (Manley v. Park, 61 Kan. 857, 58 P. 961.)

On the 12th day of December, 1899, there were filed in the court below the mandate and judgment of this court dismissing the petition and proceedings in error, and on May 31, 1900, the defendant filed two motions -- one to set aside the judgment theretofore rendered against him in said cause, the other for an order to return the order of sale which had been issued on said judgment. In each of said motions it was alleged that the court had no jurisdiction to entertain such suit, to render judgment, or to order the property attached to be sold to satisfy the same; that the record in the cause showed that the plaintiff was not a judgment creditor of said insolvent corporation; that the company had not been dissolved by the expiration of the time limit in its charter or by a judgment of dissolution; that the plaintiff had a special security for the payment of his debts, which he did not allege had been exhausted; that the act of the legislature of Kansas, entitled "An act concerning private corporations," approved March 6, 1883, was unconstitutional; that the suit was prosecuted against the executor of a dead man, and under our constitution and laws the probate court of Atchison county, and not the district court, had jurisdiction; that no attachment could legally issue against the property of the defendant executor; that section 203 of the executors' and administrators' act (Gen. Stat. 1897, ch. 107, § 147; Gen. Stat. 1899, § 2892) is unconstitutional, and contravenes sections 6 and 8 of article 3 of the constitution of the state of Kansas, and, also, violates sections 1 and 2 of article 4, and the fourteenth amendment to the constitution of the United States, and section 27 of the act of congress creating the territory of Kansas; that in rendering said judgment said district court did not give full faith and credit to the public acts and judicial proceedings of the orphans' court of Union county, New Jersey, according to the requirements of section 1 of article 4 of the constitution of the United States, and did not accord to the defendant, a citizen of New Jersey, the privileges and immunities of an executor resident in this state, contrary to section 4 of article 2 of the federal constitution, enforcing said section 203 of the executors' and administrators' act of this state, which abridges the privileges of the defendant and his immunity from suit by attachment, deprives him of his property without due process of law, and denies him the equal protection of the law, contrary to the fourteenth amendment to the constitution of the United States.

These motions were heard together, and overruled. An exception was taken, and the order of the court in overruling said motions is brought here for review.

Judgment affirmed.

David Martin, and L. F. Bird, for plaintiff in error.

Jackson & Jackson, for defendant in error.

OPINION

ELLIS, J.:

Although several assignments of error were made herein and argued at great length by the learned counsel for the plaintiff in error, the one question necessary for us to consider, in the present status of this case, is, Was the judgment of December 13, 1897, absolutely void? If it was null and void, it could properly be attacked by the motions, the overruling of which constitutes the grievance now complained of, and, if not, it stands as a final determination of all the matters in controversy in the action in which it was rendered, and as to those matters it is res judicata. The mere announcement that the defendant voluntarily appeared and pleaded to the action will suffice to dispose of and determine in the affirmative the question as to whether the court below had jurisdiction of the person of the non-resident defendant. There remains, then, for our consideration, the question as to whether such judgment was void for want of jurisdiction of the subject-matter, or because it was not within the powers granted to the court by the laws of its organization.

Section 6 of article 3 of the constitution of this state provides that "the district courts shall have such jurisdiction in their respective districts as may be provided by law"; and by statute it is enacted that "there shall be in each county organized for judicial purposes a district court, which shall be a court of record, and shall have general original jurisdiction of all matters, both civil and criminal (not otherwise provided by law)." (Gen. Stat. 1897, ch. 85, § 1; Gen. Stat. 1899, § 1879.) Surely this grant of power is broad enough to confer jurisdiction, except as to those matters only which by statute are withheld or ceded to another tribunal.

It will be noted that the present case was an action for the recovery of money upon a contractual liability against a foreign executor, and specific authority for the bringing of such an action may be found in section 147, chapter 107, General Statutes of 1897 (Gen. Stat. 1899, § 2892), 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."

In the case of Cady v. Bard, 21 Kan. 667, the statute just quoted was construed by this court, and in the opinion Mr. Justice Brewer said:

"Now, a non-resident may be sued in an action on a contract for the recovery of money, and service may be obtained by attachment and publication. In 'like manner' may a foreign executor or administrator be sued. That a state has jurisdiction over all property within its territorial limits, and may subject it to the process of its courts, will not be doubted. Whether a judgment rendered upon a service by attachment and publication has any extraterritorial force, or binds any thing other than the specific property attached, we need not inquire. It is enough for the purposes of this case to hold that jurisdiction may be acquired, so far as may be necessary, to cut off all interest of the non-resident defendant in the property attached."

In the syllabus in that case it was laid down as the law of this state that, under the statutory provision just quoted, a foreign executor or administrator may be sued in an action on a contract for the recovery of money, and service obtained by attachment and publication. See, also, Denny v. Faulkner, 22 Kan. 89; Dunlap v. McFarland, 25 id. 490; Donifelser v. Heyl, 7 Kan.App. 606, 52 P. 468, affirmed, 59 Kan. 779, 54 P. 1059.

The statutes conferring jurisdiction on the probate courts of this state do not nullify the provisions of the statute permitting actions to be brought by and against foreign executors and administrators in the same manner as they may be brought by and against non-residents of the state. It would be idle to cite the various provisions of our constitution and laws relating to the jurisdiction of probate courts in the care of the estates of deceased persons minors, and persons of unsound mind, for, in the view we have taken of this case, it is necessary for us only to determine the question as to whether, under the constitution and laws of this state, the district court of Atchison county had jurisdiction to entertain a suit like the present, commenced against a non-resident executor by attachment and service by publication. If a court should assume to act in a case over which the law did not give it authority, the judgment would be altogether void. This would be true whether objection be made to the exercise of unwarranted power on the part of said court or not. But the court "has jurisdiction of any subject-matter, if, by the law of its organization, it has authority to take cognizance of,...