Spencer v. Kansas City Stock-Yards Co.

• Citation: 56 F. 741
• Parties: SPENCER et al. v. KANSAS CITY STOCK-YARDS CO.
• Decision Date: 05 June 1893
• Court: U.S. District Court — Western District of Missouri

56 F. 741

SPENCER et al. v. KANSAS CITY STOCK-YARDS CO.

United States Circuit Court, W.D. Missouri, Western Division.

June 5, 1893

Johnson & Lucas and H. M. Meriwether, for plaintiffs.

Pratt Ferry & Hagerman, for defendant.

PHILIPS District Judge.

This is an action of ejectment instituted in this court. One of the plaintiffs is a resident of the state of Texas, two of them are residents of the state of Kentucky, one is a resident of the state of California, and three are residents of the state of Missouri. The defendant is a corporation of the state of Kansas, but has a place of business, in charge of its agents and servants, in this state and district. The defendant appears for the purpose, only, of this motion, and moves the court to quash the service and dismiss the action for the reasons--First that the court has no jurisdiction of the case; and, second that the defendant is not a resident of Missouri, and part of the plaintiffs are nonresidents of the state, and the suit was not brought in the district of the residence of either the plaintiffs or the defendant; and because no substituted service can be had. It appears from the evidence in the case that the defendant company, while incorporated under the laws of the state of Kansas, and therefore a citizen of that state, maintains its stock yards both in the state of Kansas and in Kansas City, Mo., and that at the time of the institution of this suit it had, and has ever since kept, a general manager in charge of its office in Kansas City, Mo., in compliance with the requirements of the statute laws of the state of Missouri. The property in question is occupied by the defendant as a stock yard.

By section 8 of the act of March 3, 1875, determining the jurisdiction of circuit courts of the United States, it is provided----

'That when in any suit, commenced in any circuit court of the United States, to enforce any legal or equitable lien upon, or claim to, or to remove any incumbrance or lien or cloud upon, the title to real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of, or found within, the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear, plead, answer or demur by a day certain to be designated, which order shall be served on such absent defendant or defendants, if practicable, wherever found, and also upon the person or persons in possession or charge of said property, if any there be; or where such personal service upon such absent defendant or defendants is not practicable, such order shall be published in such manner as the court may direct, not less than once a week for six consecutive weeks; and in case such absent defendant shall not appear, plead, answer or demur, within the time so limited, or within some further time, to be allowed by the court, in its discretion, and upon proof of the service or publication of said order, and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district; but said adjudication shall, as regards said absent defendant or defendants without appearance, affect only the property which shall have been the subject of the suit, and under the jurisdiction of the court therein, within such district. And when a part of the said real or personal property against which such proceedings shall be taken shall be within another district, but within the same state, said suit may be brought within either district of said state.'

The principal contention of counsel for defendant is that this section does not give jurisdiction as to the subject-matter, but only provides for substituted service in cases where jurisdiction, or the right to bring the suit, is given by other sections of the statute; and that as the act of 1887 does not, in terms, confer jurisdiction in the action of ejectment, and other proceedings in rem affecting real estate, except where the diverse citizenship exists, no inference can arise from section 8 that it was intended to confer jurisdiction on the United States court from the mere fact of the situs of the property, and that, therefore, the substituted service provided for in section 8 could have no application to a case which cannot be brought in the United States court by original process. There has been discussion of this statute, with diverse conclusions,--one under the act of 1872, (Brigham v. Luddington, 12 Blatchf. 237;) the other under the acts of 1875 and 1887, (Ames v. Holderbaum, 42 F. 341.) In the Brigham Case it was held that, where the plaintiff and one of the defendants were citizens of the same state, it would defeat the jurisdiction of the court. In the Ames Case the plaintiff was a citizen of the state of Illinois, two of the defendants were citizens of the state of Ohio, and one defendant was a citizen of the state of Iowa,--the situs of the property sought to be foreclosed, and the place of the venue. In this latter case it will be observed neither of the defendants was a resident of the same state with the plaintiff; and it was held that under said section 8 the nonresident defendants could be brought into the court in Iowa by means of the substituted service of process provided for under said section.

Without undertaking any review of these decisions by two learned judges, I will, with some diffidence, add some thoughts which seem to me tenable, as applied to the facts of the case in hand:

By the first section of the act of 1875 it was provided----

'That no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving such process or commencing such proceeding,' etc.

The re-employment of the term 'found' in section 8 is to be understood in the sense in which it was employed in section 1. It contemplates a proceeding against a defendant in a district whereof he is not an inhabitant, and provides for the substituted service of process upon him to bring him into the forum of litigation, for the purpose of binding the res, unless he is 'found' therein, in which case he may be served just as he could be under section 1. The first section applied more especially to proceedings in personam or at least where, in addition to the judgment in rem, a personal judgment over might be rendered against the defendant...