Van Dyke v. Illinois Commercial Men's Ass'n

• Decision Date: 20 December 1934
• Docket Number: No. 22671.,22671.
• Citation: 193 N.E. 490,358 Ill. 458
• Parties: VAN DYKE v. ILLINOIS COMMERCIAL MEN'S ASS'N.
• Court: Illinois Supreme Court

358 Ill. 458

193 N.E. 490

VAN DYKE

v.ILLINOIS COMMERCIAL MEN'S ASS'N.

No. 22671.

Supreme Court of Illinois.

Dec. 20, 1934.

Action by Elizabeth C. Van Dyke against the Illinois Commercial Men's Association. From a judgment for defendant, plaintiff appeals.

Affirmed.

Appeal from Circuit Court, Cook County; Rowan E. Posanski, judge.

Ekern & Meyers, of Chicago (Luther F. Binkley and Russell H. Matthias, both of Chicago, of counsel), for appellant.

Ryan, Condon & Livingston, of Chicago (David J. Greenberg, of Chicago, of counsel), for appellee.

FARTHING, Justice.

The appellant, Elizabth C. Van Dyke, brought an action of debt in the circuit court of Cook county against the Illinois Commercial Men's Association, a corporation, upon a judgment rendered in her favor as plaintiff, and against the appellee as defendant, in the district court of Douglas county, Neb. In the trial court the appellee's demurrer was sustained to the appellant's replication. The appellant elected to stand by her replication, and this appeal followed.

The judgment sued on was entered by default on July 25, 1922, in the Nebraska court, and an order of revivor was entered in that court on November 3, 1931. In the circuit court of Cook county the appellee filed a plea of nul tiel record and a special plea in answer to the appellant's declaration. In substance, the special plea of the appellee states that it transacted all of its business through its secretary and board of directors at its Chicago office, and particularly that it has never had any agent or transacted any business in the state of Nebraska; that, at the time the judgment was rendered against it in that state, no person was authorized to accept service on its behalf; that no agent or attorney appeared there and waived service of process for it; that the judgment was rendered against the appellee without service upon it; and that for this reason that judgment was null and void.

The appellant admits that under the authority of Pembleton v. Illinois Commercial Men's Ass'n, 289 Ill. 99, 124 N. E. 355, and Minnesota Commercial Men's Ass'n v. Benn, 261 U. S. 140, 43 S. Ct. 293, 67 L. Ed. 573, service on the appellee by serving Harry S. Weller, a member of the appellee association, and J. E. Hart, secretary of the Department of Trade and Commerce of Nebraska, was void, but she contends that, by removing the case from the state court and filing its objections to her motion to remand, the appellee waived service, and therefore the state court had jurisdiction and power to enter the judgment against the appellee.

After the appellant alleged in her replication the filing of her suit in Nebraska and that summons was served on J. E. Hart in his official capacity as secretary of the Department of Trade and Commerce of that state, and Harry S. Weller, managing agent of the appellee, the replication alleges that the appellee appeared and obtained an order removing the cause to the United States District Court, and later filed in the latter court a transcript of the proceedings. Following this, the appellant filed a motion in the federal court to remand the cause on the ground that the federal court did not have jurisdiction. The appellee then filed objections to the motion to remand. It stated that it had never applied to or obtained from the state of Nebraska a license to do business; that it was not then doing, and had never done, business in Nebraska; that it had never had an officer, director, agent, or solicitor or any office or place of business within that state, nor was there at any time any person in that state authorized to act for it; that Harry S. Weller and J. E. Hart, secretary of the Department of Trade and Commerce, named in the sheriff's returns, were not agents of the appellee, and were without power to accept service for it. The replication then alleges that the United States District Court, after a full hearing on the appellant's motion and the objections of the appellee, ordered the cause remanded. The appellant then says that she filed a transcript in the state court of the proceedings in the federal court, and that the appellee did not appear or take any further steps in the cause, and that the judgment which is set forth in appellant's declaration was rendered and remains in full force and effect.

Before considering the other questions involved, we must first determine whether this court has jurisdiction of this appeal. The appeal was perfected from the trial court directly to this court on the theory that section 75 of the Civil Practice Act is applicable. Smith-Hurd Ann. St. c. 110, § 199, Cahill's Rev. St. 1933, c. 110, par. 203. It provides for direct appeals to this court where ‘a construction of the constitution is involved.’

The appellant contends that the trial court violated section 1 of article 4 of the Constitution of the United States when it sustained the appellee's demurrer to the appellant's replication. She insists the trial court refused to give full faith and credit to the judgment rendered by the Nebraska court, and that this judgment is one which comes within the provisions of section 1 of article 4. On the other hand, the appellee insists that the judgment sued upon was rendered in violation of the due process clause of the Fourteenth Amendment of the United States Constitution, because the state court did not have jurisdiction of the appellee.

We have held that the record of a judgment rendered in another state may be questioned as to the existence of facts recited therein which were necessary to give the court jurisdiction. If it is made to appear that such facts did not exist, the judgment will be held to be a nullity. It may be shown that there was a want of jurisdiction either of the subject-matter or of the person. Pembleton v. Illinois Commercial Men's Ass'n, 289 Ill. 99, 124 N. E. 355;Field v. Field, 215 Ill. 496, 74 N. E. 443;Forsyth v. Barnes, 228 Ill. 326, 81 N. E. 1028,10 Ann. Cas. 710. This same rule has been laid down in Thompson v. Whitman, 18 Wall. 457, 21 L. Ed. 897;Simmons v. Saul, 138 U. S. 439, 11 S. Ct. 369, 34 L. Ed. 1054; and National Exchange Bank v. Wiley, 195 U. S. 257, 25 S. Ct. 70, 49 L. Ed. 184. Bound up with the question as to what judgments shall receive ‘full faith and credit’ is the question of ‘due process of law’ under the Fourteenth Amendment to the Constitution of the United States. If the judgment was rendered without due process of law, it is not entitled to the benefit of section 1 of article 4 of the Constitution of the United States, which requires that ‘full faith and credit shall be given, in each state, to the public acts, records and judicial proceedings of every other state.’

The reasons for the rule were stated by the United States Supreme Court in Riverside & Dan River Cotton Mills v. Menefee, 237 U. S. 189, 35 S. Ct. 579, 581, 59 L. Ed. 910. That was a personal injury suit brought in North Carolina. The defendant was a Virginia corporation, and a summons was served upon one of its directors who resided in North Carolina but who was not a resident agent there. A judgment for the plaintiff was affirmed by the state's Supreme Court. That court held that the due process clause of the Fourteenth Amendment did not prevent it from entering a judgment and that the clause would become effective only when an attempt was made to enforce the judgment. In holding that the due process clause forbade the entry of the judgment, the United States Supreme Court said: ‘It is, however, unnecessary to pursue the subject from an original point of view, since in Pennoyer v. Neff [95 U. S. 714, 24 L. Ed. 565], supra, among other things it was said that ‘proceedings in a court of justice to determine the personal rights and obligations of parties over whom the court has no jurisdiction do not constitute due process of law.’ And see Connecticut Mut. Life Ins. Co. v. Spratley, 172 U. S. 602, 19 S. Ct. 308, 43 L. Ed. 569, where these principles were treated as self-evident. It is true that in most of the decided cases questions concerning judgments rendered without a hearing under the circumstances here disclosed have arisen from attempts to enforce such judgments in jurisdictions other than the one wherein they were rendered, presumably because the defense of want of due process was not made until the judgments had been entered and an effort enforce them was made. But the fact that because, unobservedly or otherwise, judgments have been rendered in violation of the due process clause, and their enforcement has been refused under the full faith and credit clause, affords no ground for refusing to apply the due process clause and preventing that from being done which is by it forbidden, and which, if done, would be void and not entitled to enforcement under the full faith and credit clause. The two clauses are harmonious, and because the one may be applicable to prevent a void judgment being enforced affords no ground for denying efficacy to the other in order to permit a void judgment to be rendered.' See, also, Old Wayne Life Ass'n v. McDonough, 204 U. S. 8, 27 S. Ct. 236, 51 L. Ed. 345, and Baker v. Baker, Eccles & Co., 242 U. S. 394, 37 S. Ct. 152, 155, 61 L. Ed. 386. In this latter case, in discussing the effect of the Fourteenth Amendment to the Constitution of the United States, it was said: ‘But until the adoption of the Fourteenth Amendment (1868) this remained a question of state law; the effect of the ‘due process' clause of the amendment being, as was held in the case just mentioned [Pennoyer v. Neff, 95 U. S. 714, 732,27 L. Ed. 565], to establish it as the law for all the states that a judgment rendered against a nonresident who had neither been served with process nor appeared in the suit was devoid of validity within as well as without the territory of the state whose court had rendered it, and to make the assertion of its invalidity a matter of Federal right.’

We are convinced that a question is...