Mills v. Wagner

| Miss. | Oct 15, 1908

Eletcher, J.,

delivered tbe opinion of tbe .court.

The appellant, a nonresident corporation, was sued in 1905 by the appellees in the court of Justice Mauldin at Water Valley for damages on account of a shipment of flour. The suit was by attachment, and in order that jurisdiction should attach it was necessary, under section 133 of the Annotated Code of 1892, that the defendant company “be found” in the justice’s district or have property or debts in such district. It appears that Wagner & Co. were indebted to appellant in the sum of $832.50, and, for the evident purpose of conferring upon the justice of the peace jurisdiction of the attachment suit, Wagner & Co. deposited this sum of money in the Bank of Water Valley to the credit of the Saxony Mills, and thereafter sued out the attachment, alleging that the Bank of Water Valley was indebted to the Saxony Mills. The bank answered the writ of garnishment, stating that Wagner & Co. had made this deposit, which was still in the possession of the bank, but that the Saxony Mills repudiated the transaction, disclaimed any ownership of the fund, and declined to recognize the deposit. In addition to this procedure, the summons in attachment was served upon one Reynolds, a resident citizen of Water Valley, who was at the time a traveling salesman in the employ of the Saxony Mills. Reynolds seems to have accepted service and acknowledged that he was the agent of the appellant, and the officer so stated in his return. The appellant entered no appearance in the case, and judgment was taken in favor of Wagner & Co. as by default for the sum of $150, and the money in the bank was subjected to the payment of the judgment. It appears, however, that this fund was never so applied, but seems to have been paid to appellant. However that may be, it appears that in September, 1906, the judgment was unsatisfied, and upon suitable garnishment proceedings a debt due appellant by the Newburger Mercantile Company was sought to be subjected to the payment of the judgment. The sole defense interposed by the Saxony Mills is that the judgment rendered by Justice of the Peace Mauldin -in 1905 is void, because that court never acquired jurisdiction.. The circuit court held that the judgment was not void, and gave judgment against the garnishee in favor of appellees, and the-Saxony Mills prosecuted this appeal.

It is insisted by appellant that the act of Wagner & Co., in-depositing the money in the bank to the credit of the Saxony Mills was unsanctioned by the appellant and that jurisdiction-, could not thereby be conferred upon the court. We agree with this contention and have no difficulty in concluding that "one indebted to a nonresident cannot place money on deposit in a bank,, in defiance of his creditor’s wishes, fór the purpose of conferring jurisdiction in attachment upon the court where the bank is located. This judgment must be upheld, if at all, upon the theory that the nonresident company had actually been served with process within the jurisdiction of the justice-'of the peace rendering the judgment. This matter, however, originated prior to the adoption of the present code. We are not aided, in determining this question, by the provisions of sections 919 and 920, of the Code of 1906, and chapter 123, p. 132, of the Laws of 1908. These new statutes, undertaking to define what shall constitute “doing business” within the state and who are to be-deemed agents of foreign corporations for the purpose of process, are not now before us. The case at bar is governed by the general rules of law on the subject and by chapter 61, p. 49, of the Laws of 1894, which provides:

“If the defendant in any suit or legal proceeding be a corporation, process may be served on the president or other head of the corporation, upon the cashier, secretary, treasurer, clerk or agent of the corporation, or upon any one of the directors of such corporation; or if the corporation be a sleeping car company, upon any conductor thereof; or if a steamboat company, upon the captain or other officer of a boat thereof. If no such person or persons be found in the county, then it shall be suffi,dent to post a true copy of the process on the door of the office or 'principal place of business of the corporation. In suits against railroads, sleeping car, telegraph, telephone, express, steamboat and insurance companies or corporations, or in suits against a receiver or receivers in charge of the property of any such companies or corporations, the process may be served on any agent of'the defendant or sent' to any county in' which the office or principal place of business may be located, and there served as herein directed and authorized; or may be served on any one of the foregoing officers of such corporation or company, and upon the secretary, cashier, treasurer, clerk, depot agent, attorney or any ■other officer or agent of such receiver or receivers, or upon them in person. When any writ or process against such corporation, ■company, receiver or receivers has been returned executed, the •defendant or defendants shall be considered in court, and the action shall proceed as actions against natural persons, and all process and notices to be served upon such companies, corporations or receivers, may be served as herein directed.” ,

It will thus be seen that the statute makes special reference to railroads, sleeping car, telegraph, telephone, express, steamboat, and insurance companies; and provides for service of process upon such companies by serving any of their agents. It is clear that no difficulty can arise in such cases, because all such companies have offices in the state, pay taxes here, have important property interests which the law protects, and in most cases have made large and valuable investments within our borders. This is the class of corporations to which reference is made by Justice White:eld in his concurring opinion in Illinois, etc., R. Co. v. Sanford, 75 Miss. 862" court="Miss." date_filed="1898-03-15" href="https://app.midpage.ai/document/illinois-central-railroad-v-sanford-7988136?utm_source=webapp" opinion_id="7988136">75 Miss. 862, 23 South. 355, 942. But the appellant corporation does not fall within this class. It has no office or place of business in the state of Mississippi. It has its place of' business elsewhere, and sends its traveling salesmen into this state, who take orders, which are transmitted to the home office and filled by shipment direct to the purchaser. The question is whether a court acquires jurisdiction of a case against such a nonresident corporation by serving process upon a traveling salesman. , Is such an employee an “agent” of the corporation within the meaning of the statute above quoted ? It is well settled that a corporation like the appellant company cannot be held to be “doing business” within the state, in the absence of a statute enlarging the usual significance of this well-known expression. It is hardly necessary to cite authority in support of this conclusion, as there is no intelligent dissent among the authorities. See the exhaustive note to Berger v. Pennsylvania R. R. Co. (R. I.), 9 L. R. A. (N. S.) 1214.

It is equally well settled that, in the case of a corporation which is not “doing business” in this state, service of process upon a mere soliciting agent is not sufficient. Such an employee is not an agent of the corporation within the meaning of the statute. It is accurately stated by the Michigan court that the word “agent” in a statute like ours does not mean every man who is intrusted with a commission or employment, but designates the principal officers of the corporation, who either generally or in respect to some particular department of the corporate business, have a controlling authority, either general or special. Lake Shore & Michigan Southern Ry. Co. v. Hunt, 39 Mich. 469" court="Mich." date_filed="1878-10-29" href="https://app.midpage.ai/document/lake-shore--michigan-southern-railway-co-v-hunt-7929103?utm_source=webapp" opinion_id="7929103">39 Mich. 469. It is said again that statutes providing for service of process upon an “agent” of a corporation are to be construed “to include only agents vested with some general authority and discretion, and not to extend to mere employees having no independent powers.” 19 Ency. Pl. & Pr. 676; Fairbanks v. Cincinnati & C. R. Co., 54 F. 420" court="7th Cir." date_filed="1892-10-26" href="https://app.midpage.ai/document/n-k-fairbank--co-v-cincinnati-n-o--t-p-ry-co-8846087?utm_source=webapp" opinion_id="8846087">54 Fed. 420, 4 C. C. A. 403, 38 L. R. A. 271.

It follows from these views that the justice’s court was wholly without jurisdiction to render the original judgment, and the same is absolutely void. Such being the ease, the writ of garnishment against the Newberger Mercantile Company should have been quashed.

Reversed a/nd remanded.