23 N.W.2d 570 | Minn. | 1946
Defendant is an unincorporated joint-stock association organized under the common law of New York. It has conducted its business in Minnesota for more than 30 years. Its business consists of conducting travel tours for groups of persons both here and abroad, issuing and selling travelers' checks and letters of credit, and acting as agent for shippers and consignees commonly known as "foreign freight forwarders."
Defendant's principal office in this state is in Minneapolis, and during the time here involved, in fact ever since 1927, that office has been and was in charge of one James E. Beard, who is its principal agent in this state and possessed of the powers and authority of a general agent. None of defendant's members are residents of Minnesota, nor are any of its officers domiciled here. The only issue presented is whether the court erred in holding that jurisdiction had not been acquired, since service was not made upon any member or officer of defendant, and that service upon Mr. Beard was not authorized by our law, Minn. St. 1941, §
"When two or more persons transact business as associates and under a common name, whether such name comprise the names of such persons or not, they may be sued by such common name, andthe summons may be served on one or more of them. The judgment in such case shall bind the joint property of all the associates, the same as though all had been named as defendants." (Italics supplied.)
Under the common law, an unincorporated association was not recognized as a legal entity and, as such, could neither sue nor be sued. Starting with this background, we find that the act cited goes back to G. S. 1866, c. 66, § 37. While the language there used is slightly different from that of the present statute, the substance is the same now as it was then. Furthermore, in G. S. 1878, c. 66, § 42, we find the statute practically in its present form and it has so remained ever since. By L. 1901, c. 278, it was provided:
"Whenever a cause of action exists or has accrued in favor of a resident of this state against any non-resident, individual, association or copartnership engaged in business in this state, by reason of said business so conducted in this state, service of the summons" could be made by delivering a copy thereof to the "manager, superintendent, representative, foreman or agent while he is in actual charge of the business out of which said cause of action accrued, * * * and such service so made shall be due and sufficient service upon any such individual, association or copartnership."
The constitutionality of this act was attacked in Cabanne v. Graf,
"the leading authority in support of the now well-settled proposition that, * * * no state can authorize its courts to compel a *252 citizen of another state remaining therein to come before them and submit to their decision a mere claim upon him for a money demand, no matter what the prescribed mode of service of process against him may be. An attempt to do so is not due process of law." (Citing cases.)
The act was held to be unconstitutional as to that defendant. But we did not thereby declare the entire statute to be unconstitutional. Instead, we said this (
"* * * Whether the statute is valid as applied to associations or copartnerships, which are quasi legal entities, to the extent of binding their property, but not that of the individuals of which they are composed, we do not consider or decide, for this is not such a case, but one against an individual."
See, Henry L. Doherty Co. v. Goodman,
However, by R. L. 1905, § 5544, L. 1901, c. 278, was expressly repealed. No legislative substitution has since been made.
The rule has long been established that in the absence of an enabling statute an unincorporated association cannot sue or be sued in the association's name, the reason being that such an association, absent a statute recognizing it to be such, has no legal entity distinct from that of its members. That was so determined in St. Paul Typothetae v. St. Paul Bookbinders' Union,
"But whatever may be the law applicable to such associations generally, there is one respect in which the authorities are agreed, and that is that at common law they are not, whether organized for business or other purposes, entitled to recognition in the courts in their association name. It is well settled that, in the absence of a statute otherwise providing, to be entitled to conduct judicial proceedings in court, a party litigant must be either a natural or artificial person. * * * such societies cannot maintain an action in their association name, but must sue in the name of the individuals composing them, however numerous they may be. Such societies, *253 in the absence of statutes recognizing them, have no legal entity distinct from that of their members." (Citing cases.)
In addition to these, reference may be had to Allis-Chalmers Co. v. Iron Molders' Union (C. C.) 150 F. 155, 184; Jardine v. Superior Court,
It is also a recognized rule that where statutes specify the person upon whom service of process is to be made in an action against an association such as this defendant there must be compliance with such statutory provisions. As stated in 7 C. J. S., Associations, § 36, p. 94, under Effect of StatutoryProvisions:
"Statutes which change the common-law rule as to parties defendant in actions against unincorporated societies by authorizing suits against certain officers thereof, or against the society by its name, usually prescribe the persons upon whom service shall be had, and where the statute prescribes the person or persons upon whom service should be made, such provision is mandatory."
Cf. Church v. D. R. Callihan Co.
"Long established and valuable remedies are abrogated by statute only by 'specific enactment or necessary implication.' [Citing *254
cases.] It is a rule to be applied cautiously but nevertheless unfalteringly whenever valuable rights themselves need protection, that a statute in derogation of a well established and salutary principle of the common law, or of equity, will not be extended by construction 'beyond its most obvious import.' Stewart v. Duncan,
We think our present case is one for the application of the rule stated in the Sylte case. The legislature has not, within the 68 years since this statute in its present form was enacted, expressly, or at all, provided a means of service of process upon foreign associations other than as provided by the act. It operates uniformly upon all associations of this kind. Where there are no members of the association within the confines of this state, jurisdiction is not available in this kind of action upon an agent, since the act provides forpersonal service upon one or more of its members. To hold that service of process upon an agent of a foreign association doing business for it here, where such association is not a common carrier or an express company (as to both of which other appropriate means for acquiring jurisdiction are provided by our laws) shall constitute valid service of process, would in effect be reading into our act provisions which are neither by (
"* * * we can only take the legislative intent to be as expressed in the act, and are without power, by construction or otherwise, to amend the plain language which the Legislature has employed." *255
So, also, in City Co. of New York, Inc. v. Stern (8 Cir.)
"* * * Had the Minnesota legislature intended to make nonamenability to service the test of the tolling of limitations it could easily have done so. Some states have added such an exception. * * * But unless authority may be found in some controlling Minnesota decision we have no power to read into the unambiguous language of the statute an unexpressed intent of the legislature. If the statute seems to operate inconsistently with its probable intent the power to amend it is in the Minnesota legislature and not in a federal court."
Among our other cases bearing upon this phase, Gale v. Townsend,
Plaintiff thinks State ex rel. Railroad and Warehouse Comm. v. Adams Express Co.
"* * * that whenever a common carrier refuses or neglects to obey any lawful order or requirement of the commission, made under the provisions of the statute under which it acts, an application may be made to the court, alleging such disobedience, and the court is given power to hear and determine the matter on short notice to the carrier; such notice to be served on the carrier, his or its officers, agents, or servants, in such manner as the court shall direct. *256
"That the regulation of the business conducted by common carriers is one over which the legislature has full power to act, and that ample authority can by law be conferred upon the railroad and warehouse commission to call on any carrier doing business within our borders, whether a natural or artificial person, resident or nonresident, for such information as is absolutely essential for the proper conduct of the carrier and the protection of the public, ought not to be questioned."
Plaintiff "concedes there are decisions in Minnesota which hold that the summons must be served upon a member to acquire jurisdiction of partnerships and that the due process clause of the federal and state constitutions is not satisfied by service of process upon a managing or general agent"; also, that he has"no quarrel with that rule, where it is shown that theassociation is of a local character, and members reside withinthe state." (Italics supplied.) What he wants from us is that we should so construe the act as to make the law fit his particular purpose. Of course we cannot grant what he wants. His plea might well be made to the legislature, but he should know better than to ask us to do the job. As we have shown, this statute has withstood the test of time without change by the legislature, the department of government which has the constitutional authority to enact laws and to change them. This court has carefully refrained from enlarging or limiting the plain provisions of the act. Minn. Const. art.
Lastly, plaintiff asserts that, in any event, defendant is an express company and, as such, under §
Since jurisdiction is conferred on a court by the sovereign which creates it, reference must necessarily be made to the law of such sovereign to determine whether a specified court has power to entertain any particular type of case. 3 Beale, Conflict of Laws, § 586.1. The same author, in § 589.1, correctly states:
"The proper method for service of process is determined by the law of the forum. 'Each state has the right to prescribe by law how its citizens shall be brought into its courts.' "
We are of the opinion, and so hold, that the trial court properly granted defendant's motion to set aside service of summons upon it.
Order affirmed. *258