Minneapolis Threshing Machine Co. v. Ashauer

142 Wis. 646 | Wis. | 1910

Dodge, J.

Any right of plaintiff to maintain this action is dependent on its contention that it never became personally subject to the jurisdiction of the court in the former foreclosure action where it was named as defendant. In case of a collateral attack upon so solemn a record as this judgment, made years after its rendition and after it is obvious that the party seeking to attack it bad knowledge of it, every reasonable intendment should be made in favor of the jurisdiction so assumed and exercised. The very adjudication by the court that it had jurisdiction is of strong prima facie effect, and only by clear negation of the facts necessary to confer jurisdiction should it be ignored. Of course, if the record itself discloses that the 'sole and only evidence of service which the court had before it negatives the jurisdiction, then no adjudication by the court is conclusive, but the evidence of such service is entitled to most'liberal construction in favor of the conclusion reached by the court in its judgment in case of collateral attack. Miller v. Brenham, 68 N. Y. 83; Ill. S. Co. v. Dettlaff, 116 Wis. 319, 93 N. W. 14. In the Sieben foreclosure case this foreign corporation was claimant of a lien upon property in Wisconsin, and for' the purposes of barring and foreclosing that lien the court of course had full jurisdiction of the subject matter and might obtain jurisdiction of the person by any means prescribed by our statutes consistent with due process of law. Moyer v. Koontz, 103 Wis. 22, 79 N. W. 50; Pennoyer v. Neff, 95 U. S. 714; Fond du Lac C. & B. Co. v. Henningsen P. Co. 141 Wis. 70, 123 N. W. 641. At that time, as now, our statute authorized the acquirement of jurisdiction over the person of a foreign corporation such as this by service of summons and notice of object of action, by delivering copies thereof “to any agent having charge of or conducting any business therefor in this state.” Subd. 11, sec. 2637, S. & B. Ann. Stats. (1889); subd. 13, sec. 2637, Stats. (1898). This satisfies due process of law. Fond du Lac C. & B. Co. v. Henningsen P. Co., supra. That the word “agent” is to be construed broadly and liberally is evinced by the context. It is used in contradistinction to the words “chief officer,” “vice-president,” “secretary,” “cashier,” “treasurer,” “director,” or “managing agent.” Further than this, the same section indicates a policy of broad liberality in enabling personal jurisdiction over foreign corporations where the subject matter is properly within the jurisdiction of our courts. For example, railroads may be reached by service upon any station,, freight, or ticket agent; sleeping or hotel car companies, by service upon any person having charge of car. Subd. 6, 7, 8, sec. 2637, S. & B. Ann. Stats.

Such being the law, the evidence of service before the court in the former foreclosure action was, as stated, the leaving of summons and notice of object of action at the office of the company maintained at Fond du Lae with the person in charge of said office. By clear implication this return contains an assertion that the threshing machine company did maintain an office at Fond du Lac, which we can have no doubt is “business” within the meaning of the section above quoted. It also declares that the person with whom the summons was left did “have charge of said office,” which by obvious implication asserts that he had charge of such business. Thus we think that by fair judicial construction the facts necessary to confer jurisdiction were shown to exist, especially when, as here, said foreign corporation, being present, offered no evidence in contradiction of either the facts stated or the natural inferences therefrom. If the maintenance of. the office was not of such a character as to constitute business in this state, or if the relation of McRoy, the person served, thereto was not such as to constitute him an agent in charge of business, those facts were entirely within the knowledge of this appellant, and its failure to make any contradiction was itself a fact from which might have been inferred their existence. If the facts necessary to confer jurisdiction did exist, jurisdiction was acquired, however imperfect the evidence of those facts before the court in the Sieben ease. Schmidt v. Stolowski, 126 Wis. 55, 61, 105 N. W. 44; Zahorka v. Geith, 129 Wis. 498, 504, 109 N. W. 552. Hence, although that record had failed to disclose jurisdiction, yet if the facts were proved in this action the judgment in the former was equally conclusive on the merits.

We are satisfied that the record upon this appeal does disclose affirmatively jurisdiction over the person of this plaintiff in the former foreclosure action and the consequent bar of all appellant’s rights in the mortgaged premises, so that judgment dismissing its complaint was correct and should be affirmed irrespective of the grounds upon which such action was predicated by the trial court.

By the Cowrt. — Judgment affirmed.