The construction given by the Supreme Court of Kansas to the
Kansas statutes holding that real estate situated in that state,
the title to which was vested in a nonresident executor to whom
letters testamentary had been issued by a court of another
jurisdiction, may be attached and sold in an action of debt against
the nonresident executor, is binding on this Court. And, treating
the statutes as having such import as a decision upon a matter of
local law, this Court must determine whether, as so construed, they
violate the federal right involved.
A domestic judgment of a state court entered after the defendant
had appeared generally and whose validity it would have been the
duty of this Court to uphold on direct proceedings to obtain a
reversal thereof, should be treated by courts of the United States
so far as it relates to federal questions which existed at the
commencement of the action, as valid between the parties to the
judgment, and if no claim to the protection of the Constitution of
the United States was set up in any form in the proceedings had in
the state court prior to judgment, such protection cannot be
invoked for the first time in this Court to annul the judgment on
the ground that it is absolutely void and of no effect under the
Constitution of the United States.
A federal defense which cannot be availed of unless raised
before judgment is not efficacious, when it has not been raised at
the proper time, to avoid the judgment when rendered.
Page 187 U. S. 548
Richard A. Park was plaintiff in the original action, brought in
the district court of Atchison County. Kansas, against William H.
Risk, executor of the estate of George Manley, deceased. It was
alleged in the petition, in substance, that the decedent was, at
the time of his death, the owner of stock of the par value of
$27,500, in a Kansas corporation, known as the Kansas Trust &
Banking Company; that said corporation, subsequent to the death of
Manley, became indebted to plaintiff; that the corporation was
insolvent and had no property from which such indebtedness could be
realized; that the defendant, as executor of the estate of Manley,
became seised and possessed of all the property of the decedent
within the State of Kansas, including the shares of stock referred
to, and, by reason of a contractual liability imposed on the
stockholders of said corporation, defendant was liable to plaintiff
for the indebtedness in question. There was filed with the petition
an affidavit for attachment, because of the nonresidence of the
defendant, and after the return of the summons, an attachment was
levied on certain real estate in Atchison County, Kansas, "as the
property of said defendant William H. Risk, executor of the estate
of George Manley, deceased." Publication of notice of the pendency
of the action was made, as required by laws of Kansas. Within the
time limited for answering, the defendant appeared generally by
filing a demurrer to the petition on the grounds of a want of
jurisdiction over the person of the defendant and the subject of
the action, because several causes of action were improperly
joined, and because the petition did not state facts sufficient to
constitute a cause of action. Thereafter, Reuben A. Manley,
successor to William H. Risk, as executor and trustee of the estate
of George Manley, deceased, was substituted as defendant in the
stead of Risk. An answer was thereupon filed in which most of the
material averments of the petition were admitted, such as the
ownership by George Manley in his lifetime of the stock in
question; the execution of his last will and testament; its
admission to probate and the grant of letters testamentary to Risk
and to his successor by a New Jersey orphans' court; that Risk and
his successor "became seised and possessed of all the property of
the late George Manley, deceased,
Page 187 U. S. 549
lying and being situated in the State of Kansas," and that the
substituted defendant (Reuben M. Manley)
"became and is now a stockholder of the said, the Kansas Trust
& Banking Company, and as such executor of said estate is the
owner and holder of said shares of stock of said corporation,
amounting to the sum of $27,500."
Separate defenses were interposed to defeat recovery, such as
that plaintiff had not reduced his claim against the Kansas
corporation to judgment, that there was a defect of parties
plaintiff, that a special fund created by the Kansas corporation
for the payment of the indebtedness in question existed, and should
first be exhausted, and that various actions were pending in which
recovery was sought by judgment creditors of said Kansas
corporation, upon the liability of defendant as a stockholder in
said corporation.
Issue was joined by the filing of a reply, the cause was tried
by the court, judgment for the amount claimed was rendered against
the defendant, and the attached real estate was ordered sold. The
cause was taken to the Supreme Court of Kansas, and that court
dismissed the petition in error because of an informality in the
proceedings and without passing on the merits, 61 Kan. 857. After
the mandate had been filed in the lower court separate motions were
made on behalf of defendant, to set aside the judgment and to
withdraw the order for the sale of the attached property. The same
grounds were assigned in support of each motion, and the claim of
the protection of the Constitution of the United States was
embodied in the third ground, by the assertion that a statute of
Kansas, upon which the judgment complained of was based violated
the first and second sections of the fourth article of, and the
provisions of, the Fourteenth Amendment to the Constitution of the
United States. The motions were overruled, and the "decision and
judgment" was subsequently affirmed by the Supreme Court of Kansas.
62 Kan. 553. By writ of error, the cause was then brought to this
Court. The original defendant in error having died, Anna O. Park
has been substituted as defendant in error.
Page 187 U. S. 550
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
A motion has been made to dismiss the writ of error upon the
ground that no federal question is presented by the record, it
being claimed that the decision and judgment of the Supreme Court
of Kansas sought to be reviewed was based solely upon a
consideration of local statutes and the determination of a question
of general law,
viz., the effect as
res judicata
of a judgment of a court of Kansas. But, as the claim of the
benefit of the Constitution of the United States was specially made
in the motions, and was passed upon adversely to the moving party,
it follows that a federal question exists in this record, and the
motion to dismiss in therefore overruled.
Missouri, Kansas
&c. Ry. Co. v. Elliott, 184 U. S.
534.
The specifications of error now relied upon are thus stated in
the brief of counsel for plaintiff in error:
"First. Under the Constitution and laws of the State of Kansas,
an executor, resident in the State of Kansas, could be sued in a
district court of the state, but the property in his charge could
not be attached, nor sold on execution."
"Second. Under the Constitution and statutes of the State of
Kansas, no authority exists for attaching the property in charge of
a nonresident executor."
"Third. Section 203 of the Executors' and Administrators' Act,
par. 2989, Gen.Stat.Kansas, 1889, as construed and upheld in this
case, is in violation of Section 2, Art. IV, of the Constitution of
the United States, in that it does not accord to the plaintiff in
error and his predecessor, citizens of the State of New Jersey, all
the privileges and immunities of an executor resident in the State
of Kansas. Sec. 2, Art. IV, Const.U.S."
"Fourth. Sec. 203 of the Executors' and Administrators' Act,
par. 2989, Gen.Stat.Kansas, 1889, as construed and upheld in this
case, is in violation of the Fourteenth Amendment to the
Constitution of the United States, in that it abridges the
privileges
Page 187 U. S. 551
of the plaintiff in error and his predecessor, citizens of the
United States, and their immunity from suit by attachment, and
deprives them of their property without due process of law, and
denies them the equal protection of the laws."
"Fifth. The right of the plaintiff in error, and his
predecessors, citizens of the State of New Jersey, to act as
executors of the estate of George Manley, deceased, is a privilege,
and the exemption of an executor, not a resident in the State of
Kansas, from suits by attachment, is an immunity which is
guaranteed by Sec. 2, Art. IV, Constitution of the United States,
and the same were denied by the decision of the Supreme Court of
Kansas in this case."
The first and second propositions, it is manifest, simply invite
a consideration of the Constitution and laws of the State of
Kansas; and, consequently, the construction adopted by the Supreme
Court of Kansas of the pertinent provisions of such Constitution
and laws, is binding upon this Court as a decision upon a matter of
purely local law, not presenting a federal question. We must
accept, then, as undeniable the ruling of the highest court of
Kansas, that, under the constitution and statutes of Kansas real
estate situated in that state, the title to which was vested in a
nonresident executor, to whom letters testamentary had been issued
by a court of another jurisdiction, might be attached and sold, in
an action of debt against the nonresident executor.
The remaining propositions assail the validity, under the
Constitution of the United States, of the statute of Kansas, par.
2989, Gen.Stat.Kansas, 1889; sec. 147, c. 107, Gen.Stat.Kansas,
1897, as thus construed by the Supreme Court of Kansas. The section
in question upon which the judgment complained of was based is as
follows:
"An executor or administrator duly appointed in any other state
or county 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 nonresident may sue or be sued."
This section was held to authorize an attachment of property in
an action against a nonresident executor, precisely as in ordinary
actions against nonresidents.
Page 187 U. S. 552
Now the claimed nullity of the judgment assailed was based upon
the alleged invalidity of the Kansas statute above quoted, as
respected the Constitution of the United States, in this, that, as
an executor resident in Kansas possessed the privilege or immunity
of not being subject to suit by attachment of property, a like
privilege or immunity within the State of Kansas was vested by the
Constitution of the United States in executors who were not
residents of Kansas, and the refusal of the State of Kansas to
accord such privilege or immunity to a nonresident executor, and
the subjecting him to the operation of attachment laws, deprived
the foreign executor of his property without due process of law,
and denied him the equal protection of the laws. But it is obvious,
we think, under the circumstances disclosed in this record, that
the protection of the Constitution of the United States could not
be successfully invoked to annul the judgment here complained of on
the theory that such judgment was absolutely void and of no effect
under the Constitution of the United States. This results from the
consideration that no claim to the protection of the Constitution
of the United States was set up in any form in the proceedings had
in the state court which resulted in the judgment complained of,
and for such reason, if that judgment had been brought to this
Court for review, it would have been its duty -- having in mind the
provisions of ยง 709 of the Revised Statutes -- to affirm the
judgment and recognize its binding force, because no federal
question was raised. A domestic judgment of a state court whose
validity it would have been the duty of this Court to uphold, on
direct proceedings to obtain a reversal of such judgment,
manifestly should be treated by courts of the United States, so far
as relates to federal questions which existed at the time the
action was commenced in which the judgment was rendered, as valid
between the parties to such judgment. We could not hold to the
contrary without saying that a federal defense which could not be
availed of unless raised before judgment was yet efficacious,
although not raised, to avoid the judgment when rendered. This
would necessarily declare a plain contradiction in terms. As the
authority conferred by Kansas upon her courts was to set aside
Page 187 U. S. 553
void judgments, provisions of the Constitution of the United
States which would have been available if pleaded or otherwise
presented in the state courts as a defense in the proceedings in
the original action to defeat the recovery of a valid judgment
cannot, when the opportunity has not been availed of and the
judgment has become a finality, be resorted to as establishing that
in fact the judgment possessed no binding force or efficacy
whatever.
Judgment affirmed.
