*2 WISDOM, Before RIVES and Circuit Judge. Judges, JOHNSON, and District Judge. WISDOM, Circuit pre- principal question corporate sents is defendants process amenable to ab- service of are sent from state within the tolling an Alabama statute limitations a de- fendant. George standing Dedmon in his was yard Bessemer, Alabama, son’s June when he was struck rotary power broken of a lawn blade sixty mower. The metal hurtled feet through air, hand, struck his left nearly amputated mower, it. The lawn neighbor purchased
which Dedmon’s had Bessemer, from a local merchant in bore name, the Genoa, Company, trade “Genoa Mower attorneys Illinois”. Dedmon’s Secretary wrote the Alabama for concerning information the Genoa Mower Company. Secretary of State in- attorneys formed the that Genoa Mower designated Company agent had not an process officerec- relating foreign corporations ords dis- closed no known as Genoa Company. Mower As a result of further investigation, attorneys learned that company, corporation, an Illinois had changed Sycamore its name to Manu- facturing Company. A second letter to Secretary brought the Alabama of State out the information that neither Genoa Sycamore qualified Mower nor had to do attorneys in Alabama. con- Mower had cluded Genoa consum- state, outside of mated its contracts process could not be had Sycamore, Dedmon, and advised late nothing that there was more do. could Dedmon retained new counsel. Their investigation disclosed that the mower Products, manufactured Falls was corporation, Jerry Lorant, Birmingham, Ala., Inc., an Illinois dis- Sycamore. appellant. tributed Genoa Falls registered pleadings affirmatively tiff’s also do business had not showed designated serv- Alabama or limita- personal injury tions for ice of in Alabama. had run actions answer, before the *3 filed suit. court Dedmon filed in the state plaintiff first, the contends that the stat- naming I960, Falls, Genoa March Mower, during ute was tolled the defendants’ Sycamore as defendants. and state; “absence” from the that under the alleges complaint that the The savings statute, 7, 34, Title Codeof § neg- injury resulted from the defendants’ bama, a is absent from the assembly ligent of the manufacture or place state when it has no known of busi- damage. causing case the mower The ness, designate has agents, failed to March to the federal court was removed comply has failed to with the for day complaint 21,1960. was filed the doing Second, business in Alabama. personal plaintiff attempted to secure plaintiff argues defendants are Mr. service on the defendants estopped plead the statute of limita- Birming- Cunny, and Mrs. M. 0. ham, then tions, quash of their motions to officers, agents, of as and directors filed in March 1960. The district court corporation. mo- defendants’ On the held for the defendants. We affirm. judge tion, quashed the serv- the district ground Mrs. Cun- on that Mr. and I. ny personal immune to service: were testify Cunny Mr. was in Alabama to 26 of the Alabama Code case, and in an unrelated as a witness provides one-year prescriptive a period purely Cunny him was with for personal Mrs. injury for provides. actions. Title 34§ social reason. “Time state of any person deducted.—When is absent quashed After the district court serv- period the state ice, complaint amended his might brought which a suit have been and, up- in October secured service against him, the time of such absence defendants, on each of the as authorized computed portion must not be as a by the service of Ala- substituted statutes necessary time chapter.” a create bar under this Sections bama. argues appellant require any corpora- Alabama Code plain savings of this clause is organized in Alabama tion that the statute of limitations does not copy a business in file of its run favor of an absent defendant. n charter Secretary State, with des- puts appellant This construction agent ignate an authorized within the position asserting the anomalous .state, pay a dollar ten fee. The stat- constructively pres the defendants were provides a thousand dollar for ute fine ent, being purposes sued, for but were comply provisions. (cid:127)failure to with these present, purposes of the statute of 199(1) Title of the .Sections limitations. The construction seems to any provide Code nonresi- ignore clause dent who does business within the state protect a —to claimant unable to obtain agent appointing an without authorized because of the defend n shallbe appointed deemed to have ants’ absence. .Secretary of to receive any arising process in service early Several Alabama cases have em- n ofthe Secretary business. The State phasized personal presence notify any directed to nonresident required operation the state is upon is made him under statute of limitations. Huss v. Central Banking Co., 1880, Railroad 66 Strauss, 472, 473, Inc., 1882, defendants moved for dismissal of or, alternative, 227. But in the most -the 73 Ala. recent summary judgment. subject, Dairy Co., The motion v. Tuell was on 344, on contention that the So.2d '.based square- Dairy held the Alabama ly Peters v. Tuell eliminates pres- personal pres doubt that that nonresident’s constructive actual or necessary. meth- ence in ence in the state state is Whenever practicable proc it is od of substituted service to obtain pre- state, sufficient to ess nonresident motorist is a defendant within the operation 34. The vent the Section 34 will not This decision quoted jurisd with is court cited the Huss case and accord with decisions approval lan- Brickell’s Chief Justice ictions.1 guage : The difference between Sections. running of true test 199(1) providing 193 and for services on *4 lia- statute of limitations is the the bility nonresidents the- business within invoking its bar providing state and Section 199 for serv to the ice on nonresident motorists is period prescribed. If whole of the enough prevent application to of the rule liability, there is the continuous laid down in the in Peters decision to the party is residence or domicile of the that, appellant stant case. The asserts immaterial.” 199(1) under Sections 193 and it is nec Stakely, Mr. opinion, pointed Justice author of the essary do show the defendant was to must that a statute out ing business within the that in state and be construed with “its sub- reference to subsequent juris enforcement suit the ject object matter and accom- to be dictional basis of a suit under Sections plished by the act in its relation to other 199(1) subject 193 and is to attack. But statutes”; ap- 34, if 7 were Section readily ap in since most cases it will be against plied non- to action an absent parent done defendant has giving legislature resident the would be any pertinent business a state to the right plaintiffs a much more extended action, require cause of given plaintiffs than is actions. greater hardly any burden ment is than The Court ruled: need under Section 199 to show that in, driving was the nonresident motorist “It is obvious that at all times been, plaintiff has the state. And when a date of the accident service satisfy an court that the- able to could be secured on the defendants way prevented back residence those cases cable for ant 2d Wuchter v. is son, Ala.Sup., does under the 7, Codeof 1940. designed 89; A.L.R. 1230. from the state.” them. So not here S.Ct. him to of the defendants in where it 259, protect Title Code of absence of [250 See enforce his Accordingly Pizzutti, against reason which lies [72] Ray is not 35 So.2d This statute 705] § the defend- v. Richard- L.Ed. 199, or service 276 U.S. practi- 36 rights non- 446, So. no statute. When he method of the state to ure it would under the nonresident obstacles first here court lacked time if the defendant eign service appear defendant had able to cross the obtaining year simply enforcement pursue that he encountered blocked after the process, failed didi it. Once the defendants jurisdiction. relief does not done same hurdle a second' accident; finally statute, sufficient he will path, process during utilize contends in a for that the Alabama set, any any difficulty- indicate probably it, nonresident, business more statutory- does motorist, plaintiff' his to seek than, fail that., not. the- be- in. Taylor Navigazione Triestina, Meyers Co., S.Ct.Okh, v. Libera E. Const. 175 Okl. Cir., 1938, 907; 547; Co., 95 E.2d v. Scorza 53 P.2d v. Smith Finance 630; Deatherage, Cir., 1954, S.Ct.N.C., 367; 208 F.2d 207 N.C. 177 S.E. Greyhound Loope Lines, 1952, 183; Am.Jur., Limitation, 114 Cal. see 34 of Act 651; App.2d ions, 250 P.2d §§ Walker v. L. and 221. non-complying corporation. But there ir- became in Alabama implying penalty in is no basis for such revocably subject to service registration requiring to do accruing from such business. state; expressly business in the the law special statu- Our conclusion that provides for a fine as its sanction un- tory process on method for service provide does for additional sanctions. doing busi- persons qualified, nonresident Moreover, urged by penalty presence with- creates a in Alabama ness inappropriate promoting tiff seems prevent Section the state sufficient to registration compliance with tolling of limitations from34 operate haphazardly, It would both as to language strongly supported which violators it and as to would strike states: 193. The section them; how hard it would hit and it would such “In the event give lucky plaintiffs in effect few appoint fail to so constitute shall benefit, windfall whereas the violator’s secretary its of state true against is not them but offense attorney, upon whom all such lawful general the state. rule is may papers pleadings foreign corporation failure mere comply of a *5 served, shall no other such statutory requirement with the designated by cor- so such have been poration imposed doing as a condition of business purpose, then such for such preclude does not it when sued from corporation have shall deemed to be pleading the of limitations when statute secretary to the of state consented statute would de- such otherwise be a attorney, being lawful its true and Compensation fense.” Workmen’s Bu- process, plead- upon all whom such Co., D.C.N.D., v. H. F. Johnson reau may ings served, papers be until or F.Supp. 901, 904. We hold that the limitations shall have the statutes of comply defendants’ to with the failure bringing against the ac- run the filing requirements stop does not it from * corporation said *.” tion relying on the statute of limitations language points unequivocally to this case. This understanding legislature’s the III. ac- of limitations would run on might brought by be service tions that argu plaintiff’s The last-ditch process under the statute. There is estopped the defendants are ment is that interpretation than that Section no other plead the statute limitations. to expected apply to in such was not any special not does cir record indicate cases. creating estoppel. cumstances argues plaintiff however that he was dili II. gent pressing claim and argued corporation a It is of the defendants with failure to file failing comply with to the state’s re secretary prevented of state him from doing quirements business the bringing suit. The defendants are not not be entitled should to take ad state any misrepresenta made have to shown allowing vantage serv plaintiff relied on which to his tion process on it. Weishaar v. Butters nothing There is more to detriment. Equipment Co., 1939, Pump and 149 Kan. estoppel in this than there show P.2d A.L.R. 1190. Such spe other suit be in under the jibe does net with the a result service cial governing policies the limitation of ac tions, the defendants filed the nonresident When their since purported quash, special to service under service statu motion tory was directed was not provision not it “absent” from the which 199(1), meaning savings which allow Sections According argument to the service. This clause. therefore rests substituted findings judge; ground solely penalizing the district record on literally, this on the action would not barred the motion was based by get
attempt
personal
statute of
limitations
service
personal
injury
prescribed
actions
officers and directors of the defendant
early
companies
who
not in Alabama
Section 26. The
were
applied
companies.
exactly
defend-
cases
the statute
as writ-
business
attempted
Strauss,
example,
For
ten.
contend that the
ants did
Inc.,
were
was invalid because
it was
said:
time
not in business in Alabama at the
saving
is con-
thereafter,
year
of the accident or for
personal
fined in its
terms
ab-
of the substituted
sence from
State of
199(1).
statute,
Sections 193
sued or liable
suit.
Code of
Their reference to not
respect
it differs
Alabama related March
from the statutes of
some
of substituted service—nine months
date
States,
other
which
year
expiration
prescrip-
of the one
after
yet
parties absent,
do
extend to
period.
tive
having property within the State.
property
The
State,
It is of course unfortunate
existence
enforcing
may
to be barred
which
at-
reached
may
claim,
tachment,
extraordinary
what
be a meritorious
or
always
consequence
that is
existence
of statutes
applies.
authorizing
of limitations
It is
commencement
*6
designed
repose,
by
compel
of
suit
notice,
statute
constructive
cannot
enlarge
statutory
exception.
reasonable time in the interest
society,
prevent perjuries,
exceptions
of
of the statute
enlarged
frauds,
is to
mistakes.
Its
cannot be
or narrowed
litigant
get
get moving,
implication
force a
or intendment. Harwell
moving
every
pursue
Steel,
fast —to
of
avenue
v.
Later in the rule of “It sound is to
construction subject mat- to its taken reference object accomplished to be
ter and *7 to other act in its relation 345.) (35 So.2d at statutes.” case, present the facts Under appellee absence impede probably did State more difficult the service render determining
process. 1940 Code operation, field of it seems has
bama of Ala- me open a realistic test which has left
bama carry out the of the stat-
ute; viz., the defendant’s absence running tolls the limitations unless the defend- clearly subject to constructive as
ant would have been to direct as it had been if it in the stated, to render the Otherwise
State. appear inapplicable, it must defendant’s the State escape process. it to aid
did not Denver-Chicago Trucking
Compare Co. Lindeman, N.D.Iowa, 1947, F.Supp.