107 Va. 602 | Va. | 1907
delivered the opinion of the court.
Parvin E. Deatrick, of Martinsburg, W. Va., took out a policy of insurance upon his life in the State Life Insurance Company, of Indianapolis, Indiana. Some time after taking-out this policy he died in the city of Martinsburg, W. Va., on January 27, 1905. His estate was committed to J. William Taylor, sergeant of the city of Winchester, Virginia, who brought suit upon the policy of insurance and filed his declaration to the second February rules, 1906. To the same rules the defendant appeared and filed three pleas in abatement, to the first of which the plaintiff replied; the replication was sustained, and this plea passed out of the case.
In Plea No. 2, the defendant craved oyer of the writ and the
Plea No. 3, leaving out the formal parts, avers that the defendant “is a life insurance company duly incorporated under the laws of the state of Indiana, and that the said supposed cause of action did not, nor did any part thereof, arise in said county of Frederick, nor elsewhere within the state of Vir
At the April term, 1906, the plaintiff, by its attorney, moved the court to reject pleas in abatement Eos. 2 and 3, and at the same term the following order was entered: “And the court haA'ing heard the argument of counsel upon the motions of the plaintiff to reject pleas in abatement 2 and 3, doth deny said motions. Thereupon the plaintiff replied generally to pleas in abatement 2 and 3, and this case is continued until the next term of this court for trial of the issues upon the said two pleas. And the defendant moved the court to quash the writ and the return thereon; and the court being of opinion that the same matters of law and fact are presented in the pleas in abatement doth overrule said motion until the court passes upon said pleas.”
And at the June term the following order was entered:
To this judgment, a writ of error was obtained from this court.
The first error assigned is, that no issue was joined upon the pleas; and, strictly speaking, this seems to be true. There was no formal joinder of issue, but it appears that the court, the plaintiff and the defendant, dealt with the case as though the pleadings had been perfected. The evidence was introduced, and the case argued by counsel, and considered by the court, just as would have been done had the utmost formality in pleading been observed. It is certain, therefore, that the omission caused no injury to the plaintiff.
In Keator Lumber Co. v. Thompson, 144 U. S. 434, 36 L. Ed. 495, 12 Sup. Ct. 669, Mr. Justice Harlan, delivering the opinion of the court, said: “The objection that replications were not filed when the trial commenced, nor before judgment, with leave of the court, came too late after judgment was entered. The defendant was bound to know, when the court ordered the parties to proceed with the trial, that replications had not been filed to its first and third pleas. It should then have asked for a rule upon the plaintiff to file replications. Its failure to do so was equivalent to consenting that the trial, so far as the plead
In Bartley v. McKinney, 28 Gratt. 750, Judge Moncure delivered the unanimous opinion of the court, and we quote from the syllabus of that case as follows: “In an action of unlawful detainer the defendant appears; but, though the case is continued for years, he does not file any plea. The cause is proceeded in precisely as if there was a plea filed—the jury are sworn to try the issue joined, and the defendant makes full defense. There having been a verdict and judgment in favor ■of the plaintiff, the defendant cannot set up the want of the plea and issue thereon in the appellate court.” Judge Mon-cure, in the course of his opinion, quotes with approval a passage from the opinion by Judge Staples in Southside R. Co. v.
In Briggs v. Cook, 99 Va. 273, 38 S. E. 148, which was a proceeding upon a motion, issue was joined upon the plea of non-assumpsit, but no replication was filed to a special plea of set-off under section 3299, this court said, that “The statute of jeofails does not apply to the omission to file such replication, and the failure to reply entitles the defendant to nominal damages, but the defendant waives the irregularity by going to trial without it.” And in the opinion it is said, that “the defendant should have asked for a rule upon the plaintiff to file replications. Its failure to do so was equivalent to consenting that the trial, so far as the pleadings were concerned, might be commenced.”
Preston v. Salem Improvement Co., 91 Va. 583, 22 S. E. 486, was a proceeding by motion under section 3211 of the code. When the case was called in court the defendant declined to plead or tender any issue of fact, claiming the right,
In Norfolk & Western Ry. Co. v. Coffey, 101 Va. 665, 51 S. E. 729, 52 S. E. 367, the court held that in an action at law the statute of jeofails does not cure the nonjoinder, or want of issue altogether, and no verdict or judgment can properly be rendered therein; but from the opinion in that case it appears that “both court and counsel were taken by surprise at the reliance of the defendant on the statute of limitations.” After not guilty was pleaded, and the issue upon it was regularly made, the defendant in vacation, filed in the clerk’s office the plea of the statute of limitations, upon which no issue was joined, the plaintiff and the court being, as we have seen, in. ignorance of its existence. It cannot be doubted that in this case no element of estoppel existed, for there can be no estoppel without knowledge. And so, too, of other cases in which this question has been raised in this court, and which will not be mentioned, because it would needlessly protract this opinion; but we believe that in every case in which the want of issii©
Objection is taken to the pleas on the score of duplicity. It is true that a plea in abatement, which sets up two or more distinct and sufficient defenses, either of which, if true, would necessitate a finding in favor of the defendant tendering the plea, is bad for duplicity; but a plea to jurisdiction which fails to negative the several grounds of jurisdiction enumerated in the statute, would be bad for insufficiency. To constitute a sufficient plea, every ground of jurisdiction enumerated in the statute must be negatived in the plea.
Coming, then, to consider the pleas upon their merits, we concur with the learned judge of the circuit court in the view taken by him, that process can only issue to another county when some jurisdictional fact exists under section 3214. How, in the case before us, adopting the analysis of the circuit court, it appears (1) that the insurance company was the sole defendant, and (2) that the insured did not reside in the county of Frederick at the time of his death, nor at the date of the policy of insurance, nor, indeed, at any period of his existence; to which may be added, that the defendant corporation is a nonresident; that its principal office is in the state of Indiana; and that its chief officer resides in the city of Indianapolis.
The pleas aver that the defendant company has no estate or -debts due it within the jurisdiction of the court; and it is assigned as error in the judgment, that there was no proof of this
Section 2959 provides, in part, that if the defendant or one of the defendants is a foreign corporation or is not a resident of this state, and has estate or debts owing to it within the county or corporation in which the action is, or is sued with a defendant residing therein, or that the defendant, being a nonresident of this state, is entitled to the benefit of any lien, legal or equitable, on property, real or personal, within the county or corporation in which the action is, upon the institution of any •action at law accompanied by a proper affidavit, as prescribed in the preceding part of the section, an attachment shall issue. But in the case before us, the proceeding is manifestly not under the attachment law. The object of the suit was not to attach particular property, but to acquire general jurisdiction over the defendant, so as to authorize a personal judgment against it.
In Guarantee Company v. National Bank, 95 Va. 487, 28 S. E. 912, it is said: “The Guarantee Company being a foreign corporation, the circuit court of the city of Lynchburg could acquire jurisdiction of the suit against it only in some one of three ways: By the cause of action, or some part thereof, having arisen in the said city; by being sued with another who was a resident thereof; or by having estate or debts owing to it within said city.” Hone of which conditions exist, in this case.
A further objection to the pleas is, that they do not give the plaintiff a better writ; and it is true, as a general rule, that a plea in abatement must show a more proper or sufficient jurisdiction in some other court of the state, wherein the action is brought. But this requirement cannot avail where the plea
We come now to the principal contention of plaintiff in error, as set forth in his petition. “The chief defense set up by the pleas in abatement is that no court in Virginia can entertain jurisdiction of a suit by a non-resident plaintiff on a contract not made in Virginia, against a non-resident corporation, except by attachment of the non-resident’s property, even though, as is this case, the defendant be a non-resident insurance company having an agent in this state on whom, under the statute, process could be served. The claim of the plaintiff for jurisdiction, upon which he based his motion to reject the pleas in. abatement, rests upon the ground that because no statute of Virginia gives to any particular court in Virginia jurisdiction over a suit against a non-resident corporation in favor of a nonresident plaintiff on a contract made out of the state, that, therefore, under the provisions of the constitution of the United States, art. 4, sec. 2, coupled- with the statute requiring such non-resident insurance company as the defendant to have agents within the state upon whom process can be served, that any court of general jurisdiction in Virginia, from which process could be issued and be sent to be served on the statutory agent of such a corporation, has jurisdiction of such a suit.”
In support of this proposition Reeves v. Southern Ry. Co., 121 Ga. 49 S. E. 674, copiously annotated in 70 L. R. A. 513, is relied upon. That was an action brought in the city court of Atlanta by a plaintiff (whose residence does not appear in the case as reported) against a foreign railroad corporation doing business in the city of Atlanta. The defendant was duly served with process, according to the laws of the state of Georgia. The cause of action was a tort to property in the state, of Alabama, consisting of injury to a horse; and the trial court had decided in favor of the railroad company, upon the authority of Bawknighh v. Liverpool, L. & G. Ins. Co., 55 Ga.
In Green v. C. B. & Q. Ry. Co., 205 U .S. 530, 51 L. Ed, 916, 27 Sup. Ct. 595, it was held that, “While in case of diverse citizenship the suit may be brought in the circuit court for the district of the residence of either party, there must be service within the district; and if the defendant is a nonresident corporation, service can only be made upon it if it is doing business in that district in such manner, and to such an extent, as to warrant the inference that it is present there through its agent. A railroad company which has no tracks within the district, is not doing business therein, in the sense that liability for service is incurred because it hires an office and employs an agent for the merely incidental business of solicitation of freight and passenger traffic.”
With the doctrine of these cases we concur, that a corporation may be sued fipon a transitory cause of action where-ever it is doing business in such a manner and to such an extent as to warrant the inference that, through its agents, it is there present. We further agree (though it is not necessary, perhaps, to decide it in this case), that by virtue of the constitution of the United States, Art. 4, see. 2, any citizen of the United States would have a similar right to bring suit.
It is to be observed that in Reeves v. Southern Ry. Co., supra, process was served upon the defendant in accordance with the laws of the state of Georgia, and the service was upon
It seems that -service upon the statutory agent of a foreign insurance company is valid only so long as such company continues to do business in this state, and that when such a company ceases to do business in this state, it is no longer amenable to the jurisdiction of its courts. See Millan v. Mut. Reserve Fund L. Asso., 103 Fed. 764, and numerous cases there cited. 13ut it is unnecessary to decide that point in this case, for if all that is claimed by plaintiff in error with respect to the validity of the service upon, the statutory agent be true, yet where none of the grounds of jurisdiction enumerated in sections 3214 and 3215 are present, the suit must be brought in the city of Richmond, where the statutory agent resides; and process cannot be sent, as was done in this case, from the city of Winchester to be served in the city of Richmond, where the insurance company is the sole defendant, and is not sued along with a resident defendant, or upon a policy of insurance issued upon the life of a person residing, either at the date of his death or at the date of the policy, in the county of Frederick. See Warren v. Saunders, 27 Gratt. 259.
We are of opinion that the judgment should be affirmed.
Affirmed.