Wilson v. Seligman

• Decision Date: 17 September 1888
• Citation: 36 F. 154
• Parties: WILSON v. SELIGMAN.
• Court: U.S. District Court — Eastern District of Missouri

36 F. 154

WILSON v. SELIGMAN.

United States Circuit Court, E.D. Missouri, Eastern Division.

September 17, 1888

James S. Bottsford, for plaintiff.

James O. Broadhead and John O'Day, for defendant.

BREWER J.

The facts in this case are these: Plaintiff, in the circuit court of the city of St. Louis, on April 2, 1883, recovered a judgment against the Memphis, Carthage & Northwestern Railroad Company, a corporation created under the laws of the state of Missouri, for $72,799.38. Execution was issued on such judgment, and returned unsatisfied. On the 9th day of July, 1883, a motion in writing was filed in the said court of an order directing the issue of an execution against this defendant as an alleged stockholder in such corporation under the provisions of section 736 of the Revised Statutes. The defendant being a non-resident, and not found within the state, notice of this motion was served upon him personally in the state of New York, the place of his residence. Notice was also published by posting in the clerk's office in St. Louis. On the 3d day of December, 1883, defendant not appearing, the motion was sustained, and execution ordered in favor of the plaintiff against the defendant. Thereafter, on the 9th day of May, 1887, a suit was commenced in the circuit court of St. Louis by this plaintiff against this defendant upon such judgment and order; defendant, being within the state, was served personally. Thereupon the case was transferred to this court, and the single question now presented is whether the state court had jurisdiction of the person of the defendant, a non-resident of and not found within the state, and served by personal notice in the state of New York. The effect of this proceeding, if sustained, is to subject a non-resident having no property within this state to a personal judgment when he is not served within the state, and only served by process going out of the courts in this state into the territorial jurisdiction of another. But for the fact that the defendant is alleged to have been at the time a stockholder in the corporation against which judgment was rendered, there would be no room for question. The case of Pennoyer v. Neff, 95 U.S. 714, would be decisive. In that case the court says:

'But where the entire object of the action is to determine the personal rights and obligations of the defendants, that is where the suit is merely in personam, constructive service in this form upon a non-resident is ineffectual for any purpose. ...