78 So. 2d 357 | Miss. | 1955
This is a suit for damages in a tort action filed in the Circuit Court of Walthall County, Mississippi. The suit arises out of alleged accusations made against the plaintiff to the effect that he was secreting a Cadillac automobile in Walthall County for the purpose of defrauding the defendant, Allen-Parker Company, of its lien under a conditional sales contract. The declaration further charges that the defendant not only accused the plaintiff of violations of the criminal law, but that he was
When the case came on to be heard in the Circuit Court of Walthall County, the Mosseler Acceptance Company, a Delaware corporation, having its principal place of business in the City of New Orleans, Louisiana, filed a motion to dismiss the suit for want of territorial jurisdiction thereof. The Mosseler Acceptance Company had not been named as a defendant in the declaration, but it was averred in the motion that the said Mosseler Acceptance Company, the corporation aforesaid, was doing business in Baton Rouge, Louisiana, under the trade name of the defendant Allen-Parker Company; and that neither the Mosseler Acceptance Company nor the Allen-Parker Company was engaged in doing business in the State of Mississippi either prior to, on or after the 27th day of July, 1953, the date on which the suit was filed and the service of a summons had on an alleged agent who was the collection manager of the Allen-Parker Company of Baton Rouge, Louisiana, and which service of summons is shown to have been had on “Allen-Parker Company, a corporation, by personally delivering unto E. J. Herbert, its agent and collection manager, a true copy of the writ.”
The process was served on the day of the filing of the suit when the said Herbert, as collection manager of Allen-Parker Company, in company with Joe Bunton Hubbard, its credit manager, appeared at Tylertown, in Walthall County, for the purpose of taking possession of the Cadillac automobile in question, it appearing that the plaintiff had consented that his attorney and his father, at whose home the automobile was being kept, might surrender the same to the defendant, Allen-Parker Company, as the alleged holder of a lien thereon under the conditional sales contract. It is to be as
There are three principal grounds assigned as error by the appellant, Homer Dillon, in seeking a reversal of the action of the trial court in dismissing the suit for want of territorial jurisdiction: (1) That the Mosseler Acceptance Company, not being a party to the proceeding, could not appear specially to question the territorial jurisdiction of the court, and could only enter the case by formal petition for intervention; (2) that the trial court erred in holding that the Allen-Parker Company was not performing acts of carrying on a business of a directly local character so as to subject itself to the jurisdiction of the trial court and to suit in the State of Mississippi; and (3) that the commission of a single tort by the defendant through its authorized agents in the State of Mississippi subjected the defendant, as a corporation, to the territorial jurisdiction of the trial court from which this appeal is taken.
It is true that a third party cannot intervene in a case as a litigant without first filing a petition in that behalf and being allowed by order of the trial court to do so, but the contention of the Mosseler Acceptance Company is that it is the real party in interest, using the trade name of Allen-Parker Company in the conduct of its business at Baton Rouge, Louisiana, where the Allen-Parker Company maintained its office under that name as the trade name of the movant, Mosseler Acceptance Company, the nonresident corporation.
The record before us fails to disclose any formal objection at the hearing of the motion to the right of the
The uncontradicted testimony of this witness disclosed that the Allen-Parker Company had purchased the conditional sales contract from the Capitol Motor Sales Company, at the office of the former at Baton Rouge, Louisiana; that either H. B. (Buddy) Van or Joseph McCormick, acting for and on behalf of the Capitol Motor Sales Company, had negotiated the sale of the conditional sales contract on the Cadillac automobile to the said Allen-Parker Company at its Baton Rouge, Louisiana office; that the Allen-Parker Company was neither a corporation nor a partnership composed of Allen and Parker, but was merely a trade name under which the movant, Mosseler Acceptance Company, was doing business at Baton Rouge, Louisiana, as aforesaid; that neither the Mosseler Acceptance Company nor Allen-Parker Company had any office, agents or employees doing business for either of them in the State of Mississippi in the solicitation or negotiation of the purchases of conditional sales contracts, or otherwise; that Joseph McCormick, as agent of the Capitol Motor Sales Company, which was doing business at Baton Rouge, Louisiana, had undertaken to negotiate the sale of, or to assign, the conditional sales contract to the said Allen-Parker Company, and that the witness, Joe Bunton Hubbard,
The testimony of the witness, Hubbard, on the motion to dismiss the suit for want of territorial jurisdiction further discloses, without dispute, that the Allen-Parker Company in receiving any business from the State of Mississippi gets about ninety percent thereof through the
It is contended by the appellant, Homer Dillon, that the Allen-Parker Company caused to be recorded in Walthall County, Mississippi a conditional sales contract, dated December 22, 1952, on this Cadillac automobile for a larger amount of indebtedness than that called for in the contract actually executed by Dillon and delivered on Sunday, December 21, 1952, to the said H. B. (Buddy) Van, who is alleged to have made the claim to Dillon in Walthall County that he was representing the Allen-Parker Company in taking the application of Dillon and the conditional sales contract signed by him. But this would only go to the merits on the trial of this tort action on the issue as to whether or not Dillon was justified in withholding the automobile pending the negotiations for an adjustment as to the correct amount due and owing at the time the accusations and threats of prosecution are alleged to have been made by the defendant, Allen-Pai’ker Company.
We have carefully considered the eases cited by the appellant on the question of whether or not the Mosseler Acceptance Company or the Allen-Parker Company under which the former had been doing business at least since 1938 as a trade name, was doing business in this state within the meaning of Section 5345, Code of 1942, and we have concluded that under those decisions cited by appellant of Browning v. City of Waycross, 58 L. Ed. 828, 233 U. S. 16, 34 S. Ct. 578, International Shoe Co. v. State of Washington, 90 L. Ed.
Affirmed.