Lead Opinion
— An action was brought against the appellant on a policy of insurance on the life of John A. Reid, by the appellee, Margaret Reid, his widow, as beneficiary, and judgment by default was rendered against the appellant on the 23rd of September, 1895.
It has been assigned as error that the court, when rendering judgment, had not jurisdiction of appellant. Another assignment is, that the court erred in overruling appellant’s motion to set aside and hold for naught the judgment and default, and the sum
Reference has also been made in argument for the appellee to the provisions of section 318, Burns’ R. S. 1894, being section 57 of the code of 1881, as amended in 1893, relating solely to service of process on corporations, that “the process against either a domestic or foreign corporation may be served on the president, presiding officer, chairman of the board of trustees, or
In the corresponding section of the code of 1852, being section 36 thereof, 2 R. S. 1852, p. 35, 2 Davis’ R. S. 1876, p. 48, the statute provided for service of process against a corporation, and not as in the code of 1881 against “either a domestic or foreign corporation.”
In Rauber v. Whitney, 125 Ind. 216, where the action was against nonresidents of this State who had a store in the county wherein the action was brought, and the cause of action grew out of, and was connected with the business of the defendants in that county, and process was served on the agent of the defendants in that county, in charge of said business, it was held under section 310 (309), supra, that the court had jurisdiction. In Indiana Ins. Co. v. Capeheart, 108 Ind. 270, there was an application of the same section in an action against a domestic corporation. In New Albany, etc., R. R. Co. v. Haskell, 11 Ind. 301, it was said of section 310, supra (being section 30 óf the code of 1852), that it provides simply that the plaintiff may, in a given case, at his option, sue in the county where the cause of action arose, whether process can or cannot be served in that county; and that its purpose, thus pointed out, is not in conflict with the position that the plaintiff may, as provided in said section 796, institute his action in any county where the corporation “has an office or an agent upon whom process may be served.” In that case the action was brought in La Porte county against a railroad corporation of this State having its principal office and place of business in Floyd county, the plaintiff’s claim not having grown out of, and not being connected with the office or agency in La Porte
The case to which reference was thus made was an action against an insurance company of this State having its principal office in Marion county. The action, being on a policy, was brought in Yigo county, and service of process was had on an agent of the corporation residing and doing business for it in Vigo county. It was said by the court, “As a general, rule, actions against corporations may be instituted in any county where the corporation has an office for the transaction of business, or any person resides upon whom process against such corporation may be served.” And the court held that the service on the agent of the corporation while residing and doing business for it in Yigo county was strictly legal, referring to the pages of the statutes of 1852, on which are sections 36 and >796 of the code of 1852. , In State, ex rel., v. Whitewater Valley Canal Co., 8 Ind. 320, where
The appellant relies especially upon Aetna Ins. Co. v. Black, 80 Ind. 513. That was an action brought in Vigo county on a policy of fire insurance against a foreign insurance company, having its principal office in another state. Process was served on the defendant’s agent in that county, but the action did not grow out of, and was not connected with, the business of any office or agency in that county.
It is.assigned as error that the complaint does not state facts sufficient to constitute a cause of action. This appeal being from a judgment by default, we can not assume that anything was proved beyond what is shown in the complaint, and as against such an assignment, the complaint must be sufficient to have withstood a demurrer for want of sufficient facts. Old v. Mohler, 122 Ind. 594. In that case, the complaint being founded upon a written instrument, the pleader had failed to set out the original instrument or a copy thereof, a defect which has often been held to be cured by a verdict or finding; yet it was held that because of the absence of the instrument the complaint did not state facts sufficient to support a judgment .upon default, when tested by an appeal. See, also, Blackwell v. Pendergast, 132 Ind. 550; Cleveland, etc., R. W. Co. v. Tyler, 9 Ind. App. 689.
The objection urged against the complaint is, that the policy, as shown by the copy thereof made an exhibit, is not signed by the insurance company or by any person.
“In Witness the Globe Accident Insurance (L. S.) Company affixes its corporate seal and signature of its President and Secretary, 23 January, 1894.”
Thus the policy appears to have been sealed, the lettering or device of the seal not being indicated except as above, but the policy, as shown by the complaint, was not signed. The exhibit must be regarded as controlling the averments of the pleading. Something has been said in argument to the effect that parol contracts of insurance may be made when not prohibited by the chanter of the insurance company, and that no special form of words is necessary; but the complaint before us is so plainly founded upon the written instrument, not embodied in the pleading, but filed with it as an exhibit, that no pretense to the contrary could have any plausible support. It is only as the foundation of the action that the court can take notice of the exhibit. Unless the policy has been executed in some valid manner, it cannot be regarded as a written contract. By its language, in prescribing the form in which it is to be executed, it provides not only for the affixing of the corporate seal, but also for the signature of the president and secretary of the corporation. It cannot be said to have been completely executed according to its own provisions. At common law, as is well known, a corporation spoke only by its common seal. Its contracts were valid only when its seal was affixed by a duly authorized agent, and a sealing was a sufficient execution oí its deed without signing. Where a statute expressly provides that a corporation may have and use a common seal,
Our statute, section 454, Burns’ R. S. 1894 (450, Horner’s R. S. 1897), provides, that “there shall be no difference in evidence between sealed and unsealed writings; and every writing not sealed shall have the same force and effect that it would have if sealed.”
The next section provides: “The execution of an instrument is the subscribing and delivering it, with or without affixing a seal.”
In this State, it is not required by any statute that a policy of insurance, issued by a domestic corporation, shall be sealed. The provisions of sections 454, 455, Burns’ R. S. 1894, above quoted, are applicable to such a written instrument.
In Peoria, etc., Ins. Co. v. Walser, 22 Ind. 73, the action was founded on a policy of insurance which was exhibited with the complaint. The policy commenced thus: “The Peoria Marine and Fire Insurance Company do insure,” etc.; and it concluded thus: “In witness whereof the president of said insurance
In the Wild Cat Branch v. Ball, 45 Ind. 213, the action was upon a bond exhibited with the complaint, not sealed, containing the name of the principal in the body, and signed by the sureties, but not signed by the principal. It was held that the complaint was insufficient as against the principal, on demurrer. The court held that under our statute a seal was not necessary to the execution or validity of the bond;
Without regard to this strict construction of the statute, we could not consider the name of the appellant in the beginning of the policy as the signature of the insurer. Aside from the fact that a corporation cannot sign its own name, which can only be signed by an authorized agent, and aside from all other considerations pertinent to the subject, the policy at its conclusion indicates that its contemplated execution was to include signing by the president and secretary at the end of, the instrument, and therefore the name at the beginning was not intended as the subscribing of the policy.
The statute prescribing -what constitutes execution of an instrument cannot be ignored. The seal, if not required by some other statute, is wholly immaterial. It does not constitute a subscribing, and without subscribing as well as delivery the instrument is not fully executed. Prather v. Ross, 17 Ind. 495; Nicholson v. Combs, 90 Ind. 515; Crumrine v. Estate of Crumrine, 14 Ind. App. 641.
Rehearing
On Petition for Rehearing.
— A distinction is taken between domestic and foreign corporations as to the methods of acquiring jurisdiction in actions in personam. A corporation organized under the laws of one state doing business in another state becomes liable to be sued and served in the latter state, not merely where the action relates to business done therein, but also in transitory actions arising in another state. A corporation is not regarded as a citizen of a state within the meaning of the constitutional provision that the citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states; and a state may impose conditions, not in conflict with the laws and constitution of the United States, on the transaction of business within its territory by corporations chartered elsewhere, or may exclude them, or revoke permission or license already given. A corporation chartered in one state by doing business in another state, where, as a condition expressed or implied to its right to do business there, it must submit to be sued in the courts of such other state, waives the right to be sued in the place of its residence, the right of trial within the state, district or county of one’s residence being a privilege which may be waived. It is not necessary that such a condition to the right of doing business be expressly stated in the statute, though this is sometimes done. If there be a statutory provision for service of summons upon foreign corporations by serving its officers or agents through which it is doing business in the state where the
The residence of a corporation in the absence of statutory provisions on the subject is where its principal business is carried on, where its principal office or place of business is.
The legal situs of a corporation, its residence, for purposes of jurisdiction need not be so confined, however, but may by statutory provision be in any place 'where its franchises are exercised or business is done, or wherever it has an agent on whom process may be served. A corporation is necessarily represented by its officers and agents. A law which authorizes suit to be brought against a corporation in any county in which it transacts business through its agents has been said to be based upon sound reasons growing out of the difference between natural and artificial persons. Home Protection, etc., v. Richards, 74 Ala. 466; Mobile Life Ins. Co. v. Pruett, 74 Ala. 487.
We have one class of statutory provisions designating where, in what county, actions may be brought, another indicating how service of process may be made. As a general rule, and in the absence of statutory provision, the venue for transitory actions against a corporation is only where it has its domicile, its real place of business. Thomp Corp., section
. In some states, if the action is brought in the wrong county, the venue must be changed on showing this fact; but unless objection is made to the jurisdiction, the action is to be tried where brought. Sometimes á nonsuit may be granted on the trial. In some states, the rule is that the want of jurisdiction can be pleaded in abatement and raised by motion or demurrer. See Brown on Jurisdiction, sections 35, 36. It is enacted in the proviso to section 346, Burns’ R. S. 1894 (343, Horner’s R. S. 1897), that “the objection that the action was brought in the wrong county, if not taken by answer or demurrer, shall be deemed to have been waived.”
' In Eel River R. R. Co. v. State, ex rel., 143 Ind. 231, it being contended on behalf of the defendant corporation that the action could be brought only in the county in which it resided, the place where its principal office was kept, the Supreme Court, holding that jurisdiction of the corporation, unless waived, could only have been acquired by summons in an action
In the case now before us there was service of process in a mode prescribed by statute. The real question presented is one arising by way of objection that the action was brought in the wrong county. This is an objection which may be waived, and if not taken by answer or demurrer it “shall be deemed to have been waived.” It was not so taken in this case.
In this application in the form of a motion to modify our former opinion, we are asked by the appellant to overrule the decision of this court in Evansville, etc., R. R. Co. v. Spellbring, 1 Ind. App. 167, that section 796 of the civil code of 1852 is still in force. The statute in which this section was embraced was entitled, “An act to revise, simplify and abridge the rules, practice, pleadings and forms in civil, cases in the courts of this state — to abolish distinct forms of action at law, and to provide for the administration of justice in a uniform mode of pleading and practice without distinction between law and equity.” Section 796, supra, was among some miscellaneous provisions of the statute, which also contained a section (802) as follows: “All laws inconsistent with the provisions of this act, are hereby repealed; but the repeal shall not operate to revive any former act. The laws and usages of this state relative to pleadings and practice in civil actions and proceedings, not inconsistent herewith, and so far as the same may operate in aid hereof, or to supply any omitted case, are hereby continued in force.” The civil code of 1881 is a revision of that of 1852, and is entitled, “An act concerning proceedings
In Eel River R. R. Co. v. State, ex rel., supra, it being claimed by the plaintiff that an act of 1858 relating to service of process upon corporations in certain cases specified, was still in force, though not included in the revision of 1881, the court was unable to fine} that it had been repealed.
It would seem that the subject of venue in a civil action belongs to the remedy or form of procedure. It is a matter with which parties or their attorneys have to do in the conduct of cases. The code of civil procedure provides that the complaint shall contain the title of the cause, specifying the name of the court and county in which the action is brought, and it also provides particularly and generally in what county the action shall be brought.
It does not necessarily follow from the omission of said section 802 that all usages which existed before its adoption, and which were by it expressly continued in force, were abolished by the adoption of the code of 1881.
But the code of 1881 was a revision of a statute'. Without express words of repeal, where there is a revision of the whole subject-matter of a former statute, the revision repeals by implication, so far as it is repugnant to the old law, or when it evidently is intended by the legislature as a substitute.
In those provisions of the code prescribing where
In Eel River R. R. Co. v. State, ex rel., supra, which was such a proceeding, the court held that, as there is no statutory provision authorizing actions such as that to be instituted elsewhere than in the county where the defendants reside, it must, as against a corporation, be brought in the county of its residence, or the county of the residence of a codefendant.
The writer of this opinion has always entertained some doubt concerning the decision which we are asked to overrule. It was rendered more than six years before the case at bar was heard, and in the meantime there had been three sessions of the General Assembly, and the section has been brought into various editions of our revised statutes. We perhaps might still hesitate to disturb that decision, were it not that further investigation and consideration has led us to conclude that no bad effect can follow. As we have seen, the objection as to the bringing of the action in the wrong county is waived, unless raised by answer or demurrer.
We are inclined to sustain the position of the appel
The modification which we now make does not require any change in the mandate at the close of our former opinion.