Moredock v. Kirby

• Decision Date: 28 October 1902
• Parties: MOREDOCK v. KIRBY.
• Court: U.S. District Court — Western District of Kentucky

118 F. 180

MOREDOCK v. KIRBY.

United States Circuit Court, W.D. Kentucky.

October 28, 1902

Matt O'Doherty and Forcht & Field, for plaintiff.

R. A McDowell, for defendant.

EVANS District Judge.

Clara Moredock, a citizen of Kentucky, brought this action in the state court against F. M. Kirby, a citizen of Pennsylvania, but who at the time was doing business in the city of Louisville under the name of F. M. Kirby & Co. It is an action at law wherein the plaintiff seeks to recover $15,000 damages from the defendant-- First, for speaking and publishing of and concerning her certain alleged slanderous and defamatory words; and, second, for an alleged false imprisonment of the plaintiff by the defendant. Upon filing the petition in the clerk's office of the state court the plaintiff caused a summons to be issued thereon against the defendant, which was placed in the hands of the sheriff of Jefferson county for service. The sheriff made return thereon in the following language:

'Executed July 15, 1902, on F. M. Kirby, doing business under the firm name of F. M. Kirby and Co., by delivering a copy of the within summons to C. P. Dodge, the person in charge of the business of said F. M. Kirby, at No. 504 and 506 Fourth avenue, Louisville, Ky., the said F. M. Kirby being a nonresident of the state of Kentucky, but being engaged in business in the state of Kentucky at Nos. 504 and 506 Fourth avenue, Louisville, Kentucky.

'E. T. Schmitt, S.J.C. 'By H. Woods, D.S.'

In due season the defendant, specially entering his appearance for that purpose only, filed his petition for a removal of the action to this court, and upon execution of the proper bond an order of removal was entered accordingly. Upon filing the record in this court the defendant entered a motion to quash the sheriff's return on the summons. By an act of the general assembly of the commonwealth of Kentucky, passed in 1893, section 51 of the Civil Code of Practice was amended, and the amendment is what is now commonly known as subsection 6 of section 51 of the Code. It is in this language:

'In actions against an individual residing in another state, or a partnership, association, or joint stock company, the members of which reside in another state, engaged in business in this state, the summons may be served on the manager, or agent of, or person in charge of such business in this state in the county where the business is carried on, or in the county where the cause of action occurred.'

The determination of the motion to quash the return must, therefore, depend upon the validity of a service made pursuant to this legislation of the state of Kentucky and its efficiency under the constitution of the United States to give the court jurisdiction over the person of a citizen of another state upon whom, confessedly, service was not had unless the service indicated by the return must be held constructively to have given the defendant the notice which he was entitled by law to have before a court acquired jurisdiction over his person. Subsection 1, Sec. 2, art. 4, Const. U.S., is in this language:

'The citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states.'

The purpose of this most essential provision, and the vital principle upon which it is based, must be obvious. It was matter of the gravest moment, if the people of the United States were to have 'a more perfect union,' of if 'domestic tranquillity' was to be 'insured' to them, as suggested in the preamble, that such a provision should be inserted in the organic law; otherwise each state would take care mainly of its own citizens, and by a system of discriminations, which would naturally grow more strict and hostile as time progressed, we should only have had disunion and contention instead of 'union' and 'tranquillity.' Hence the profound necessity for the provision that the citizens of each state 'shall be entitled' to all the 'immunities' of the citizens of the several states. This clause was not meant to announce an abstract proposition, but the constitution, with all the force and vigor possible, declares that the citizen of Pennsylvania shall be 'entitled' in Kentucky to all the immunities and privileges of the citizens of Kentucky. Moreover, this great provision is mandatory, and must not and cannot be ignored by the courts. It is not claimed that a state court, under the legislative act above copied, could, by the sort of service had in this case, acquire jurisdiction over the persons of citizens of Kentucky unless in the presumably rare instances of their residing elsewhere but continuing to engage in business in Kentucky. Manifestly, under the laws of Kentucky, as the court judicially knows, citizens of that state generally have entire immunity from being subjected to personal judgments for money upon such a service of process in actions at law,-- that is to say, citizens of Kentucky generally are exempt from judgments on such service; and, if citizens of Kentucky have such immunity, or are exempt from such consequences, then, in the very language of the constitution of the United States, citizens of Pennsylvania are 'entitled' to it also. This is the rule, and citizens of other states could not be deprived of the benefit of its operation, even if the principles of natural justice, to which we shall have occasion to allude, did not intervene. Nor can the rule be changed, and such a result be accomplished, constitutionally, under cover of the very rare exceptions just mentioned of citizens of Kentucky residing out of the state, but continuing to do business here. The constitutional provision deals with the rights of citizens generally, and its operation cannot be contracted by isolated instances.

The supreme court has persistently declined to limit itself to any express definition of the terms 'privileges and immunities,' as used in the constitution, but has repeatedly held that they were such as are fundamental, and belong to every citizen of all free governments. Slaughterhouse Cases, 16 Wall. 77, 21 L.Ed. 394. It is not doubted that one of them is the right to be exempt from a personal judgment for a money demand without the service of process,-- an exemption which the supreme court has said was 'founded on principles of natural justice. ' Pennoyer v. Neff, 95 U.S. 730, 24 L.Ed. 565; Insurance Co. v. French, 18 How. 406, 15 L.Ed. 451. That right is doubtless fundamental, and belongs to every citizen of every free country. Such an exemption is certainly an 'immunity' or a 'privilege' of the citizens of Kentucky under the laws and judicial proceedings of that state. If a citizen of Kentucky has the 'immunity' of being exempt, under such circumstances, from a personal judgment, it constitutionally follows that the citizen of Pennsylvania is equally 'entitled' to it. And it may be added that the right to be protected by the constitutional inhibition of any state legislation which shall subject any citizen to the liabilities of a personal judgment without due process of law is the common right of all. Can a citizen of Pennsylvania lose this right in Kentucky by reason of not residing here? We think not. On the contrary, we think it makes no difference where an individual resides or engages in business. The authorities hold that no court of justice in this country can acquire jurisdiction over him, or a right to render a judgment in personam against him, without a service upon him in person of a summons in the action, unless he enters his voluntary appearance therein. Nothing else is 'due process of law.' 95 U.S. 714, 24 L.Ed. 565. Such a statute as the one in question cannot abrogate this fundamental rule as against a citizen of another state though it cannot be doubted that as against the property of the nonresident so engaged in business there may be a judicial proceeding, which will be due process of law for its subjection to the liabilities of the owner. Of course, a state, as to property or a res within its borders, has ample power to provide a course of judicial procedure respecting it and judgments against it. Property not being in any sense a citizen, is not, per se, entitled to any privileges or immunities under the constitution. Hence all the states have attachment laws under which property may be seized and subjected to certain liabilities of the owner, whether he is actually served with process or not. Constructive service is sufficient in such cases.

If therefore, we went no further, it must be plain upon the face of the Kentucky legislation, when it is tested by the supreme law of the land, that it violates the rights of the defendant as they are guarantied to him by the national constitution by depriving him of an immunity or exemption allowed to citizens of Kentucky. In the case of Carpenter v. Laswell (Ky.) 63 S.W. 609, the court of appeals seems to have assumed that service of a summons upon a citizen of another state, made pursuant to the provisions of the act of 1893, was valid; but, if the question had been raised at the argument of that case, it does not so appear from the opinion of the court, wherein the question of the validity and potentiality of the legislation is neither considered nor decided. But, even if it had been passed upon, this court would not have been bound by the ruling. See the instance of conflict pointed out in Goldey v. Morning News, 156 U.S. 520, 15 Sup.Ct. 559, 39 L.Ed. 517. So far as we can find...