74 Mo. 457 | Mo. | 1881
Action for libel published by defendant in St. Louis and elsewhere, plaintiff being resident in St. Louis. The petition, among other things, charged that “ defendant is a corporation created and existing by virtue of the laws of New York, and has an office and ¡place of business in St Louis.” Upon the filing of the petition a summons issued against defendant, and the sheriff’s amended return upon the same is as follows : “ Executed this writ in the city of St. Louis, on the 29th day of January, 1880, by delivering a copy of the said writ and
The defendant pleaded to the jurisdiction of the court as follows: “And now comes defendant, and entering Reappearance solely for the purposes of this plea, denies that the court has or can have any jurisdiction of defendant in. this cause, and avers that defendant is a corporation incorporated under the laws of the state of New York; that-defendant’s chief office is not in this State; that defendant is not a resident corporation of this State, but is a foreign corporation, having its chief office out of this State; and that defendant has not any office in this State, or agent in charge of any office in this State, nor has it any agent in this State, nor has it ever had any agent or office in this-State. And further, that the facts set forth in the amended return of the sheriff upon the writ of summons herein are not true. Wherefore defendant prays that this, plea may be allowed and the cause dismissed for want of jurisdiction.” Plaintiff' filed a motion to strike out this plea, but-the motion was denied.
I.
Section 8489, (R. S. 1879,) which comes under discussion in the present instance, is as follows: “A summons shall be executed, except as otherwise provided by law, either: First, by reading the writ to defendant and delivering to him a copy of the petition; or, Second, by delivering to him a copy of the petition and writ; or, third, by leaving a copy of the petition and writ at his usual place of abode, with some person of his family over the age of fifteen years; (or, Fourth, where the defendant is a corporation or joint-stock company, organized under the laws of any other state or country, and having an office or doing; business in this State, by delivering a copy of the writ and. petition to any officer or agent of such corporation or com
I have included in brackets the fourth subdivision of •that section, to which special attention is requisite, as upon that plaintiff bottoms his claim that the service herein is valid. Apart from that subdivision, which appears for the first time in the present Revision, the section, save an .amendment which struck out the word whits as it stood in the General Statutes of 1865, is the same as it was in 1855. 2 R. S., 1223, § 7. Section 7, just cited, evidently provided only for service on individuals. The effect of such service .upon individuals had been previously defined and declared in section 5 of the same chapter. 2 R. S. 1855, p. 1222. This section corresponds with section 3487 of the present Revision, and provides that ‘ every defendant served with "the summons fifteen days before the return day thereof, shall be bound to appear at the return term of the writ;. . and if such summons be served less than fifteen days, he shall be bound to appear at the term next after the return term of such writ.” Section 1 of the same article (art. 5) provides how suits may be instituted, i. e., by filing a petition, etc., and by the voluntary appearance of the adverse party, or in lack of such appearance, by suing out a writ of summons against the person or attachment against the property of defendant. This section corresponds with section 3485 of the present Revision.
The 4th and 6th sections of the same article of the laws of 1855, make provision that the original writ, in cases •not otherwise provided for by law, shall be a summons;
The question then arises, did the legislature, by the introduction into section 3489 of the fourth subdivision .aforesaid, intend that the service of a summons on a corporation as provided for in that subdivision, should be followed by like legal effects and consequences as would the like service on an individual f In a word, that service of .summons in one case should result in the same way as service in the other? If we apply to this case the familiar maxim, “ Noscitur a sociisif we follow the rule laid down by Lord Bacon that eopulatio verborum indicat acceptionem in eodem sensu, there would seem to be but little room for doubt that the legislature, by coupling in the same section words which provide for service on an individual with words which provide for service on a corporation, intended that the words thus employed should, from the very fact of the intimate connection of such words, be understood in the rsame sense and have the same force and effect. And besides, long prior to the enactment of the fourth subdivision .now being discussed, the meaning of the words in the different sections I have cited in respect to individuals had, in consequence of repeated adjudications, acquired a fixed import. In such cases, where judicial construction puts a certain meaning on the words of a statute, and the legislature, in a subsequent act, in pari materia, or as an amendment of the original act, uses the same words, there arises -a presumption that the legislature used those words intending to express the meaning which it knew had been
In further elucidation of the intention of the legislature in this behalf, it is proper to note the history of legislation in this State respecting the service of process on corporations. In 1855 the Revised Statutes provided that “ any corporation incorporated by any other state or country and having property in this State, shall be liable to be sued, and the property of the same shall be subject to attachment, in the same manner as individuals, residents of other states or countries and having property, are now liable to be sued and their property subject to be attached.” 1 R. S., p. 375, § 22. In 1859 the legislature passed an act providing that “all railroad companies who own and operate roads terminating opposite to the city of St. Louis, and whose chief office or place of business is in the city of St. Louis, shall be sued in the same manner, and no other, that railroad companies chartered by the laws of this State are now sued.” Sess. Acts 1859, p. 67. The method there referred to for service on domestic railroad corporations is that found in section 1, Revised Statutes 1855, page 376, as follows: “In all actions which may be instituted against a corporation or incorporated company, it shall be sufficient to issue a summons, commanding the corporation, by their corporate name, to appear and answer the action; which summons shall be directed as provided by this article, and be returnable in like manner, and subject to the same rules and regulations as the like process in case of individuals.” The plain purpose of the amendment of
In 1865 a Revision of the statutes occurred, when section 22, supra, was blended with the act of 1859, thus: “Any corporation incorporated by any other state or country, and having property in this State, shall be liable to be sued, and the property of the same shall be subject to attachment, in the same manner as individuals, residents of other .states or countries, and having property, are now liable to be sued and their property subject to be attached; Provided, That all railroad companies who own and operate roads terminating opposite to the city of St. Louis, and whose chief office or place of business is in the city of St. Louis, shall be sued in the same manner, and no other, that railroad companies chartered by the laws of this State are now sued.” The act of 1859 was also embodied in chapter 164 of the Revised Statutes of 1865, at section 2, which chapter related to the manner of commencing suits. In 1871 the subject of serving process on foreign railroad corporations came up again for consideration, and this court held in Robb v. Railroad Co., 47 Mo. 540, that the defendant therein could not, under the statute, be served by the-ordinary process of summons, because, under the terms of
The law remained, as declared in Robb’s case, until 1877, when, as if with the fixed design of establishing a rule different from that announced in that case, as well as that of Middough v. Railroad Co., 51 Mo. 520, by a divided court, the legislature, leaving section 17 of chapter 62 of the General Statutes, relating to corporations, untouched* amended section 2 of chapter 164, which relates to the manner of commencing suits, by providing that: “All railroad corporations that own or operate roads terminating opposite to any point in this State, and which have offices •or places of business in this State, shall be sued in the same manner as railroad corporations chartered by this State.” Laws of 1877, p. 369. Similar statutes, from time to time, have been passed by our legislature, prescribing the method of service on foreign insurance companies, and making such service equivalent to personal service. 1 R. S. 1855, p. 855, § 1; Gen. St. 1865, p. 402, § 3; Laws 1869, p. 38, § 31. This law is still retained in the present Revision. 2 R. S. 1879, § 6013. Section 22, chapter 34, of the Revision of 1855, which subsequently, by being blended with section 1 of the law of 1859, supra became section 17 of chapter 62 of the Revision of 1835, and is now section 742 of the chapter entitled “ Corporations ” in the present Revision, except that portion of section 17, relating to railroad companies, which portion was amended by the act of 1877, is now section 3497 of the existing laws, and is in the same article, that relating to practice, as section 3489, supra. The fourth subdivision of the last mentioned section was enacted by the legislature, as already seen, two years after having placed foreign railroad companies operating roads whose termini are opposite to any point in this State, and having offices or places of business in this State, on the same footing as domestic railroad corporations, and many years after foreign insurance companies, by repeated
The question then recurs: What object had the legislature in view in adding to section 3489 the subdivision aforesaid? Certainly not to obtain personal service or its equivalent on foreign railroad and foreign insurance corporations, for that end had been already accomplished. I can conceive of no other object and no other intention actuating the legislature but a desire to render the service of a summons on all foreign corporations as facile and effective as it already was on individuals, domestic corporations, two classes of foreign corporations and upon foreign joint-stock companies. § 3498. The history of legislation in this State, which I have given fully, supports and is in accord with this view. Thus we have, in 1855, a law allowing service hy summons on all domestic corporations; a law authorizing similar service on foreign insurance companies, and a law authorizing any other foreign corporation having property in the State to be sued by attachment or as non-resident individuals are sued. Then, in 1859, a law is enacted allowing foreign railroad companies whose chief office, etc., is in the city of St. Louis to be served with summons, as are domestic corporations. Then, in 1877, we have a law amendatory of the last one and making service by summons valid on all foreign railroad corporations, etc., having offices or places of business in this State. Then, in 1879, when a revision of all the laws occurs, the legislation which had supplied defects in the statute so far as pointed out by the judiciary, culminated in the enactment of the clause being discussed, whereby all foreign corporations having an office and doing business in this State, or an agent or employe, are made suable in precisely the same manner as any other defendant, by the delivery of a copy of the writ and petition.
If it be said that this view of the clause m question is incorrect because it renders nugatory and meaningless the
Would not such a return amount to a contradiction in terms? Can a defendant be “found” for one purpose and be non est as to another? But if this return is legal and proper, what occurs next ? The sheriff makes return that -the defendant cannot be found, and thereupon the court, acting conformably with section 3496 in such cases made and provided, orders that publication be made, agreeably to
The illustration I have just employed, as I think, shows, and conclusively shows, that the “constructive notice” theory above mentioned is wholly inapplicable to the fourth clause aforesaid, wholly inapplicable for the palpable reason that if that clause is regarded as a mere substitute for service by publication, as has been asserted, then section 3494 relating thereto and providing therefor, “ would have-been rendered useless,” for why provide two methods of publication when already possessed of one applicable to all non-residents? Why provide another which, when employed, does not, as has been shown, even possess the poor merit of being constructive notice, but only lays a basis and paves the way for constructive notice, as provided in section 3494, supra ? Can it be possible that the legislature-intended any such anomalous and useless result to flow from .and follow the operation of the fourth clause? It is-impossible to believe this was intended. If it was, then such a construction of the fourth clause, while it does not construe the statute “to mean nothing” in fact, does so in effect; for while service of process under it is valid for some-purpose, that purpose is itself invalid, as when the service is had -with all the formality known to the law, its efficacy is no greater than would be an allegation in a petition or an affidavit of non-residency, as required by section 3494, supra. For the reasons aforesaid, I am of opinion that the clause before us was improperly construed by the circuit-court.
Counsel have made reference to the act of March 26th, 1881, which is as follows : “Be it enacted by the general assembly of the State of Missouri, as follows : That the fourth paragraph of section 3489 of article 4 of chapter 59 of the Revised Statutes means, and shall be construed tornean, that service had, as provided by said paragraph, upon the party or parties therein named, has and shall have the effect of personal service; and it shall be as effectual as though the same was served on the principal; and the-courts of this State shall have the same right and power' to enter a general judgment against the defendant or defendants as if they were created by the laws of this State.” Acts 1881, p. 173. This act is a declaratory act, (Sedgwick on Stat., p. 29,) and was passed twenty-five days after the-delivery of the opinion of the St. Louis court of appeals,, but the act can be of no assistance to us so far as concerns the present case, because legislative action cannot be made to retroact upon past controversies, and to reverse decisions which the courts, in the exercise of their undoubted authority, have made. This would be to install the legislature in the place of the judiciary, with power to revise and overturn the solemn adjudications of the latter — a thing not to be tolerated. Cooley Const. Lim., pp. 93, 94, and cases cited. Such action, however, of the legislature, though retrospectively void, is held valid as to future cases. Ib., pp. 94, 95, and cases cited. But, as heretofore seen, no such legislative aid was necessary, as the clause we have discussed in plain, simple and direct terms declai’ed the legislative intention and will.
Ill,
There is only one further point to be discussed, which is the power of the legislature to authorize such service to be thebasisfor a judgmenti/i 'personam. Reliance i.s placed by defendant on Latimer v. Railroad Co., 43 Mo. 105. An.
And in this State it was held that a foreign insurance corporation having an agent appointed by it, as required by the act of December 8th, 1855, should be regarded as a domestic corporation, (1 R. S., § 1,) might be garnished and a general judgment rendered against such corporation, Nap ton, J., remarking: “ Such agents do in fact represent the corporation here, although in the foreign country where the corporation has been chartered and its chief place of business is, there is another chief officer of such corporation.” McAllister v. Ins. Co., 28 Mo. 214. In Farnsworth v. Railroad Co., Robb v. Railroad Co., and Middough v. Rail
A very strong case on this point is that of Insurance Co. v. French, 18 How. 404. The state of Indiana had chartered an insurance company, whose principal office was at Lafayette in that state. The state of Ohio passed a law providing that foreign insurance companies might do business in that state, upon condition of appointing an agent upon whom process could be served. The corporation established an office at Cincinnati, was served with jirocess delivered to its agent, and judgment rendered. Afterward suit was brought in Indiana on the judgment thus recovered, and objection was made that the Ohio court had no jurisdiction over the person sued; that the corporation being created by a law of Indiana, could have no existence out of that state, and consequently could not be sued in Ohio, but the Supreme Court of the United States ruled that the judgment was as valid, and entitled to the same faith and credit under the constitution and laws of the United States, as though rendered in the state where the corporation had its habitat. In Railroad Co. v. Harris, 12 Wall. 65, Harris brought suit in the supreme court of
New Jersey has a statute essentially the same as the one we have been discussing, and there it is held that a