6 S.E.2d 249 | W. Va. | 1939
This certification involves a question which arose in the Circuit Court of Ohio County upon that court's sustaining a demurrer to a plea in abatement filed by the defendant, Ansonia Copper Iron Works, to the declaration of the plaintiff, L. Sonneborn Sons, Inc.
The plea in abatement alleges that the defendant was incorporated and exists under the laws of this State with its principal office located in Cincinnati, Ohio; that since the time of its incorporation, it has had no chief officer residing in this State and that it has had no office, works or place of business located here, but that its principal place of business has always been located in the State of Ohio; that the defendant has never done business in this State; that the plaintiff corporation has never resided in *737 the State of West Virginia, but that its residence has always been located in the State of Delaware, and that it is a Delaware corporation; that no part of the cause of action alleged in the plaintiff's declaration arose in this State but in the State of Ohio and in the State of Pennsylvania; that no part of the alleged cause of action grew out of the rights of stockholders touching corporate management of the defendant corporation; and that there has been no return of process in the action with the exception of the summons, service of which was accepted by the Auditor; the defendant, therefore, prays judgment if the Circuit Court of Ohio County will take cognizance of this action.
The assigned grounds of demurrer are that the plea in abatement shows upon its face that the defendant corporation is incorporated under the laws of this State and maintains its principal place of business in the State of Ohio, and shows further that the Auditor of West Virginia, authorized by statute to do so, did in fact accept service of process on behalf of the defendant. A further ground of demurrer urged in this Court is that the plea in abatement does not give to the plaintiff a better writ. The latter question was not one of the specified grounds of demurrer and is, therefore, not to be considered upon this review as being among the questions certified.
The written opinion of the trial judge is based primarily upon an opinion of the United States District Court for the Northern District of West Virginia rendered in October, 1912, followed by an opinion of the same court rendered in 1937. The first Federal holding in the case of Lemon et al. v. ImperialWindow Glass Co., 199 F. 927, is to the effect that a domestic non-resident corporation with none of its principal officers residing in this State can be sued in any county and required to respond to process served upon the Auditor if it has failed to comply with the provisions of chapter
Both the Lemon case and the Kay case, as well as the opinion of the United States Circuit Court of Appeals for the Fourth Circuit in the case of Mass. Bonding Ins. Co. v. ConcreteSteel Bridge Co.,
At common law, the jurisdiction (venue) of a transitory action lay in any county where the defendant could be served with process. This rule was held not to be repealed by implication by our statute establishing venue. Vinal v. Coreand Compton (1881),
Formerly, our venue statute, Code,
We have cited the foregoing cases not because they *740 have any direct bearing upon the question before the Court, but for the reason that it is our belief that they are indicative of the fact that this Court in its discussions and findings has in no case adhered to nor followed the line of reasoning that is followed in both the Lemon and the Kay cases.
We have examined with interest the opinion of the United States Supreme Court handed down November twenty-second inNeirbo Company et al. v. Bethlehem Shipbuilding Corp., Ltd.,
But we believe that the solution of the problem arising in this case is simplified by sub-section (b) of Code,
"(b) If a corporation be a defendant, wherein its principal office is, or wherein its mayor, president or other chief officer resides; or if its principal office be not in this State, and its mayor, president or other chief officer do not reside therein, wherein it does business; or if it be a corporation organized under the laws of this State, which has its principal office located outside of this State, and which has no office or place of business within the State, the circuit court of the county in which the plaintiff resides or the circuit court of the county in which the seat of state government is located shall have jurisdiction of all actions at law or suits in equity against such corporation, where the cause of action arose in this State or grew out of the rights of stockholders with respect to corporate management; * * *."
We are of the opinion that the quoted section confers venue, that its provisions are exclusive, subject to the exception hereinafter mentioned, and that when it is *741 sought to take advantage of its terms by plea in abatement tendered in due time, the proper procedure is followed. The plea filed in this case negatives the existence of each of these statutory grounds of venue, including the residence of the plaintiff. We, therefore, believing that the Federal cases discussed reach an incorrect conclusion and that the plea in abatement, if sustained by proof, will require that this action be dismissed, reverse that holding of the Circuit Court of Ohio County and remand the case to be further proceeded with in accord with this opinion.
A problem with which we are not directly confronted consists of the question: Where does territorial jurisdiction or venue lie in this State against a corporation which is not reached by any specific provision of our venue statute and which owes its legal existence to the laws of this State? Such an artificial entity cannot be entirely disregarded by the state to which it owes its existence. 8 Fletcher Cyc. Corporations (Perm. Ed.), sec. 4025; 4 Thompson Corporations (3d Ed.), sec. 3028. The provisions of Code, 31-1-72, were enacted in recognition of the fact that our venue statute covered the question of where corporations, both domestic and foreign, doing business in this State could be sued. It did not and does not touch upon the question of where a domestic corporation, non-resident and doing no business in this State may be sued. Chapter 31 is the general statutory law of this State affecting domestic corporations; so that, broadly construed, section 72 of article 1 of that chapter applies generally to corporations of that class. This places venue of actions against such corporations at the seat of government.
*742Reversed.