Brauser v. New England Fire Insurance

| Wis. | Jan 15, 1867

Dixon, C. J.

The language of the statute (sec. 46, ch. 130, R. S.) is sufficiently comprehensive to include foreign corporations, and to subject them to process of garnishment, in all cases where an original action may be commenced against them in the courts of this state to recover the debt in respect of which the process of garnishment is served; and we think the statute should be so construed, unless it can be satisfactorily established that the legislature did not intend a construction so obviously in harmony with the language employed. Actions against foreign, corporations may be commenced in the courts of this state when they have property in this state, or when the cause of action arose therein. R. S., ch. 148, sec. 1. Certainly no good reason either of public policy or practical justice can be assigned, which could induce- the legislature, in cases like these, intentionally to discriminate between foreign and domestic corporations, so as to exempt the former from liability to a process to which the latter is clearly liable. And most especially do we think this is true of foreign insurance companies, which, by several regulations of statute, are allowed to establish agencies and transact business in this state upon substantially the same basis and with the same rights as are enjoyed by insurance companies chartered or organized under the laws of this state. Nor are we aware of any principle of public policy or justice, upon which the legislature should distinguish between actions brought directly against foreign corporations for the recovery of a debt, and those in which they are indirectly brought before the court for the purpose of satisfying the demand of some third person. In both cases the inconvenience is the very same, and it is no more in the case of a foreign than a domestic corporation. We see no reason, therefore, why the legislature should discriminate in favor of foreign and against domestic corporations in regard to their liability to process of garnishment; but on the contrary, we think we can see very good reason why no such discrimination should be made; and consequently must hold, according to the plain language of the statute, that foreign corporations are subject to the process upon the same conditions as domestic corporations or natural persons, in all cases where direct actions may be instituted against them to recover the debts on account of which they are garnished.

But it is said that wherever, throughout the statutes, it is intended to give the courts of the state jurisdiction over for-ign corporations or their property, such corporations áre expressly named. This is a mistake. Many instances might be pointed out where the word “ corporation,” without any qualifying terms, signifies a foreign as well as a domestic corporation. It is sufficient to refer to sec. 1, ch. 148, R. S., above cited, where the authority to bring suits against corporations is given. The word occurs twice in that section, and is so manifestly applicable to all corporations, whether foreign or domestic, that it became necessary expressly to limit its application to the former by specifying the cases in which they might be sued.

This brings us to some questions as to the sufficiency of the affidavit and proceedings taken to charge the defendant as garnishee. It has been seen that an action can be commenced against a foreign corporation only when it has property within this state, or the cause of action arose therein. To maintain such action, and give the court jurisdiction, one or the other of these tilings must appear. Neither is alleged in the affidavit. Nor does the affidavit state that the defendant is a corporation; but leave was given the plaintiff in the court below to amend it in that particular. The fact that it is a corporation is implied only from its name. And this, we think, is prima facie sufficient. If the defendant is not a corporation, as its name alone indicates, it is a matter within the knowledge of the agents or persons having charge of its business, and may be set up in the answer, if desired. And the same presumption, we think, exists as to the facts necessary to confer jurisdiction upon the court The affidavit is in the usual form prescribed by statute in cases of garnishment, and charges that the New England Insurance Company, of Hartford, Conn., is indebted to the defendant in the principal action. The sheriff certifies that he served the notice directed to John B. Rowley, agent of the New England Insurance Company, of Hartford, Conn., upon John B. Rowley, the agent of the company at Racine, in the county of Racine, in this state. This is prima facie sufficient. If the company has no property in this state, or the cause of action, as against the company, did not arise here, those are matters of defense to be stated and shown by answer.

For an adjudication fully in point upon all the questions presented in this case, and under a statute in words almost the very same, we refer to McAllister v. Pennsylvania Insurance Company, 28 Mo., 214" court="Mo." date_filed="1859-03-15" href="https://app.midpage.ai/document/mcallister-v-pennsylvania-insurance-co-of-pittsburgh-8000541?utm_source=webapp" opinion_id="8000541">28 Mo., 214.

By the Court. — Order of the circuit court affirmed.