Tignor, Charles

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University of Kentucky

Kentucky Law JournalVolume 24 | Issue 3 Article 101936Process of Service--On Residents Absent fromState in Actions in personamCharles TignorUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Civil Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationTignor, Charles (1936) "Process of Service--On Residents Absent from State in Actions in personam," Kentucky Law Journal: Vol. 24 :Iss. 3 , Article 10.Available at: https://uknowledge.uky.edu/klj/vol24/iss3/10STUDENT NomsPROCESS OF SERVICE-ON RESIDENTS ABSENT FROM STATEIN ACTIONS IN PERSONAMSection 419 of the Kentucky Civil Code provides that, "No personaljudgment shall be rendered against a defendant constructively sum-moned, or summoned out of this state as is provided in Section 56, andwho has not appeared in the action". Thus a personal judgment can-not be rendered against a resident and citizen of Kentucky who wassummoned while outside the state.' In fact, actual personal servicewithin the state is necessary in proceedings in personam 2X leaves state A, the place of his residence temporarily, and issojourning in state B. While he is away suit is brought against himon a promissory note, and in accordance with a statute he is per-sonally served with notice. The court held, that service of processupon a resident defendant, effected by actually handing him a copy ofthe summons while outside the state, in compliance with a statute,did not authorize the rendition of a personal judgment.$ The decisionIs based upon the ground that the statute is unconstitutional in thatthe defendant was deprived of due process of law as is guaranteed tohim by the fourteenth amendment of the Federal Constitution.The situation presented by the above case raises the following In-quiries: First, whether a state can by statute authorize its courts toobtain service of process upon its residents while they are outside itsboundaries In actions in personam; second, if so, what nature ofprocess would be sufficient; and third, whether such a statute Is de-sirable?That process from the courts of one state cannot run beyond itsown boundary lines and summons non-residents for the purpose ofsecuring a personal judgment was definitely settled by the case ofPennoyer v. Veff.4 At common law, personal service upon residentsof the state was Indispensable and the process of Its courts could notrun beyond its own territorial jurisdiction and summons parties inproceedings In personam.5 There is a division of authority as towhether a state by statute can authorize its courts to assume juris-diction over the person of a resident who Is served with process whileoutside the state0 The Raher case Is not without support In holdingthat It cannot,7 but it Is believed, both from authority and reason, thatthe better rule Is otherwise.8 Professor Beale in his late treatise onHighland v. Andas, 32 Ky. Law Rep. 703, 106 S. W. 866 (1908).'Hughes v. Hughes, 211 Ky. 799, 278 S. W. 121 (1925).'Raher v. Raher, 150 Iowa 511, 129 N. W. 494 (1911).4 95 U. S. 714 (1877)."fBeale, Conflict of Laws, Vol. I, Sec. 79 (1).Note in 50 L. R. A. 586; 35 L. R. A. (n. s.) 292.1 De Ia Montanya v. De la Montanya, 112 Cal. 101, 44 Pac. 345(1896); Bernhart v. Brown, 118 N. C. 700, 24 S. E. 527 (1896); Smithv. Grady, 68 Wis. 215, 31 N. W. 477 (1887).'Henderson v. Staniford, 105 Mass. 504, 7 Am. Rep. 551 (1870);Huntley v. Baker, 33 Hun. 578 (1884); Hammill v. Talbott, 72 Mo.App. 22 (1897).KENTUCKxy LAw JouRxAT,the conflict of laws says that a state has jurisdiction over its subjectsor citizens even though they are outside its boundaries; that it can bylegislation bind its absent subjects; and that it is for the state todetermine whether and how far it will confer jurisdiction upon itscourts over absent subjects or citizens? Another writer observes, "Noris it destructive of the extraterritorial effect of a judgment based uponconstructive service that the defendant being a citizen of the state,was temporarily absent therefrom.""0The power of a state to obtain process upon its citizens whilethey are outside its territory, in actions in personam, is placed uponthe ground of the political status of citizenship. By establishing aresidence in a state and becoming its citizen, by invoking the protec-tion of its laws and all the privileges and immunities of its citizen-ship, there must of necessity be implied a consent to be bound by itslaws, its forms of procedure and its method of process. A resident ofa state, though physically absent therefrom, is ever constructivelywithin the state at least for the purpose of enjoying certain privi-leges and rights of his citizenship. For instance, he may still exer-cise his right of local suffrage, his children may still patronize thepublic schools and he still has the right to have whatever property hemay own protected by the laws of that state. If he is constructivelywithin the state for the purpose of retaining his rights of citizenship,there is no valid reason why he should not at the same time be heldamenable to the process of its courts. He should not be able to claimthe benefits and immunities of citizenship on the one hand and escapethe burdens exacted by the state upon its citizens, on the other hand.,'It may be inferred from the opinion in the Raher case that the chiefobstacle was the act of the state, viz.: service of the summons takingplace outside its boundaries, and that some form of substituted serv-ice such as leaving a copy of the summons at defendant's last usualplace of abode, would have been suffcient. But it would seem thatactual personal service, regardless of where it takes place, is to be pre-ferred to any form of constructive service which at the most makesIt only probable that notice will actually be received.Of course, a state could not get jurisdiction over every absentparty who has ceased to be its resident and has established anotherdomicile. The decisions seem to sustain the view that if the defend-ant leaves the state intending never to return, its courts then losetheir jurisdiction over his person. 2 Technically, perhaps such partyhas so lost his residence as to render the state powerless to get juris-diction over his person. The objection to this view is the extreme dif-ficulty in determining the intention of the defendant at the time he'Beale, Conflict Laws, Vol. I, Sec. 80 (1)."Freeman, Judgments (5th Ed.), Vol. 3, See. 1376."Mabee v. McDonald, 107 Texas 139, 175 S. W. 676 (1915).'Amsbaugh v. Exchange Bank, 33 Kan. 100, 5 Pac. 436 (1885);Mastin v. Gray, 19 Kan. 458 (1878); McDonald v. Mabee, 243 U. S. 90(1917).STUDEN-T NoTEsleft the state. It would seem more practicable to hold him amenableto the process of the courts of the state from which he left until hehas established another domicile.u After all a person can have onlyone domicile and it should be more easily determined than the inten-tion of the defendant.Assuming that one may be absent from a state and still be aresident thereof and amenable to the process of its courts, then, anymode of service may be authorized provided it is reasonably calculatedto notify the defendant and give him an opportunity to be heard.'"And a state may by statute provide for some form of service ofprocess other than personal service upon its citizens or subjects."15Substituted service "by leaving a copy of the summons at the defend-ant's residence has been upheld as sufficient.1 6 Even service upon aresident absent from the state has been upheld as due process in afew Instances." In the case of Mabee v. McDonald, it was held thatservice upon an absent resident by publication in a local newspaperwas sufficient to authorize the rendition of a personal judgment. Thatthis decision tends to impose personal liability on an absent partyupon process where the probability is that no actual notice will bereceived at all, Is evidenced by the fact that this Texas case wasreversed by the Supreme Court of the United States. That courtthrough Justice Holmes said, "Perhaps in view of his technical posi-tion and the actual presence of defendant's family in the state, a sum-mons left at his last and usual place of abode would have been enough.But it appears to us that an advertisement in a local newspaper isnot sufficient notice to bind a person who has left a state not intend-Ing to return. To dispense with personal service, the substitute thatIs most likely to reach defendant is the least that ought to be requiredif substantial justice is to be done. It is going to the extreme to holdthat jurisdiction was acquired by service at the last and usual placeof abode.1'' The dictum in this decision strongly suggests that substi-tuted service by leaving a copy of the summons at defendant's lastusual place of abode would have been sufficient. But it seems thatservice by publication In a local newspaper in such a case is inade-quate because its tendency to notify the defendant is too remote. ButIt would seem that thd jurisdictional efficacy of actual personal serviceshould be beyond question.The advisability of a statute providing for service upon an absentresident in proceedings in personam, is a matter of legislative policy.No citizen should be deprived of a just cause of action merely because'*Ayer v. Weeks, 65 N. H. 248, 6 L. R. A. 716 (1889) ; Cobb v. Rice,130 Mass. 231 (1881).14 Bickerdike v. Allen, 157 Ill. 95, 41 N. E. 740 (1895); Fleming v.West, 98 Ga. 778, 27 S. E. 157 (1896)."Beale, Conflict Laws, Vol I, See. 80 (2).Sturgis v. Fay, 16 Ind. 429, 79 Am. Dec. 440 (1861).T Supra, Note 11.14Supra, Note 11.21 McDonald v. Mabee, supra, Note 12.KEruc~y LAW JOURNALthe defendant saw fit to wander .outside the territorial limits of thestate, even for a legitimate business purpose, and until he establishesanother domicile he should be considered a resident of the state whichhe left and therefore amenable to its laws. And such absent partyshould not be permitted to object to any form of process so long as itis reasonably calculated to notify him and give a chance to be heard.Would it not be better to provide a method of process whereby a plain-tiE could reach the defendant, even though outside the state, ratherthan force him to follow up his adversary and submit his case to aforeign jurisdiction or else go without a remedy? Kentucky has seenthe mischief arising from this type of situation in the case of non-resident automobilists who have an accident while driving through thestate, and has provided for a method of constructive service upon suchnon-resident.w It is submitted that it is expedient for Kentucky toadopt similar legislation with respect to absent residents in all actionsin personam.C-HA&s TiG oo."Ky. Stat. (1933 Supp.) See. 12-1.

Process of Service--On Residents Absent from State in Actions \u3cem\u3ein personam\u3c/em\u3e

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Process of Service--On Residents Absent from State in Actions \u3cem\u3ein personam\u3c/em\u3e

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