Manley v. Park

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, 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, 58 Pac. 961. 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 1st and 2d sections of the 4th article of, and the provisions of, the 14th 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, 64 Pac. 28. 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.

Messrs. L. F. Bird and C. F. Hutchings for plaintiff in error.

Messrs. James F. Tufts, Horace M. Jackson, and Messrs. Jackson & Jackson for defendant in error.

Mr. Justice White, after making the foregoing statement, delivered the opinion of the court: