Herryford v. Ætna Insurance, 42 Mo. 148

Herryford v. Ætna Insurance

42 Mo. 148 | Mo. | 1868

Holmes, Judge,

delivered the opinion of the court.

The plaintiff brought suit against the defendant in the Circuit Court of the county of Howard. Service was had upon an agent of the defendant, who had charge of an agency office of the company in said county. The defendant appeared to the action, and presented to the court a petition and bond praying for a removal of the cause into the Circuit Court of the United States for the District of Missouri, under the act of Congress of the 24th of September, 1789, and alleging that the plaintiff was a citizen of the State of Missouri, and that the defendant was a corporation duly incorporated under the laws of the State of Connecticut, having its principal place of business at Hartford, in that State, and was a citizen thereof, and that the stockholders w-ere not citizens of this State; and that the matter in controversy exceeded the sum of five hundred dollars. The plaintiff objected that the corporation was not a citizen of another State within the *151meaning of the act of Congress, and that the defendant was estopped from making the application by reason that, being a foreign insurance company, and having established an agency in this State under our laws, it had voluntarily subjected itself to the jurisdiction of the courts of this State as a condition precedent to the right of transacting business here, and could not divest the court of jurisdiction by this proceeding for a removal of the case to the Circuit Court of the United States, under the act of Congress ; and that the policy was issued by an agent of the defendant in this State, under the authority granted by the laws of the State. These objections were sustained, and an order of removal was refused. The defendant excepted, filed an answer, and proceeded to trial. The plaintiff recovered a 'verdict and judgment, from which the defendant appealed to the District Court, where the judgment was reversed and the cause remanded, for the reason that the court erred in refusing to make the order of removal; and the case is brought by appeal to this court.

That the corporation may be a citizen of a State, for the purpose of suing and being sued in the courts of the United States, must be considered as settled. (Marshall v. Baltimore and Ohio R.R. Co., 16 How. 314.) When the party makes an application for a removal of the cause, in the manner required by the act of Congress, it is error in the State court to proceed further in the matter, and every subsequent step is coram non judice. (Gordon v. Longest, 16 Peters, 97; Kanouse v. Martin, 15 How. 198.) All further proceedings are erroneous. The laws of this State could not withdraw a citizen of another State from the operation of the act of Congress, nor deprive him of this right of removal of his case to the federal court. (United States v. Holliday, 8 Wal. 407.) It does not appear to have been the intention of the statutes of this State on the subject of foreign insurance agencies to deprive the party of this right. There is nothing in their provisions to preclude him from making this application. Their proper effect is merely to make the service of process on the agent of the company in this State binding on the corporation, for the purpose of giving the court jurisdiction over the party. Such service is to be ‘ ‘ deemed a service upon the *152company,” and “shall authorize the same proceedings in such suit as in case of other suits in said courts.” (Gen. Stat. 1865, ch. 90, § 3.) If service were had upon an individual citizen of another State, being found within this State, in such manner as to give the courts of the State jurisdiction over him, there could be no doubt of his right to avail himself of this privilege of removal of his case into the federal courts, nor that, if he did not claim the right, the proceedings and judgment would be binding upon him as in other cases.

This corporation had filed with the clerk of tire County Court the resolution of the board of directors, as required by the statute. It is this, and not merely the consent of the defendant, that gives the courts jurisdiction. It has been decided that this statute gives all the facilities for serving the ordinary process of law upon the foreign corporation which takes up its residence in this State, by establishing an agency here under its provisions, that would exist in reference to a corporation chartered by the legislature of this State; that it would not be liable to attachment as a non-resident, and that, having such agency and a place of business here, {£ it ceases to be, for all the purposes of this law, a foreign corporation.” (Farnsworth v. Terre Haute, Alton & St. Louis R.R. Co., 29 Mo. 75.) In the case of The City of St. Louis v. The Wiggins Ferry Co., 40 Mo. 580, it was held that although a corporation is a citizen of the State in which it is created, and must dwell in the place of its creation, and can have no legal existence beyond the dominion of the government which created it, yet it may act by agents beyond the bounds of that State, and become, constructively, resident in this State under the statute, not only for the purpose of suing and being sued, but for the purposes of taxation in respect of property found situate here. But it does not follow that the corporation must therefore cease to be a citizen of another State, within the meaning of the act of Congress in question.

There is nothing in the acts of the defendant that can have the effect to estop it from asserting this right. It had subjected itself to the jurisdiction of our courts under the statute laws. It submitted to this jurisdiction by appearing to the suit. It has the *153same right to remove the case into the courts of the United States that any other citizen of another State would have when sued in this State. It has made no contract by which this right could be divested. In Reichard v. Manhattan Life Ins. Co., 31 Mo. 518, it was held that an agreement in a policy to waive the right to sue in our courts, and sue only in the courts of the State where the company was incorporated, was void, both as being against public policy and as being in contravention of our laws relating to foreign insurance companies. There was no such agreement in this case. Nor did defendant waive the right by answering and proceeding to trial after his application had been refused. Thero can be no waiver of objection to proceedings that are entirely erroneous and void for want of jurisdiction. (Broom’s Max. 102.) The defendant was not bound to answer, and he might have refused to answer. (Kanouse v. Martin, 15 How. 209.) Having placed his exception to the action of the court in refusing his application on the record, he has a right to have that error corrected in this court.

The judgment of the District Court will be affirmed and the cause remanded to the Circuit Court for further proceedings.

The other judges concur.