Nash v. Rector, Churchwardens & Vestrymen of the Evangelical Lutheran Church

| Pennsylvania Court of Common Pleas, Philadelphia County | Dec 7, 1835

The opinion of the Court was delivered by

Pettit, President.

In a suit against a corporation, the process, at common law, must be served on the head or principal officer. If after such service the defendants do not appear at the return of the writ, by attorney duly appointed under their common seal, the next process is a distringas, under which the sheriff may distrain the lands and goods which constitute the common stock of the corporation. If they have neither lands nor goods, the courts have no power to compel them to appear. I Tidd’s Frac. 116. The service of a summons on the head or chief officer, must also be within the jurisdiction of the sovereignty where the artificial body exists. M’Queen v. The Middletown Manufacturing Company, 16 Johns. Rep. 5. Admitting, then, the rector to be the head of this corporation, the service of the writ could not be sustained at common law. This view of the case would dispose of the whole question, and require no aid from the circumstance, that, inasmuch as the defendants decline to appear by attorney, and it is agreed that there is nothing in Pennsylvania upon which a distringas could operate, the summons must, necessarily, even without disturbing the service, prove abortive. But it is contended that the plaintiff is not obliged to struggle with the difficulties of the common law, and that the act of assembly of the 22d of March 1817, entitled “an act relative to suits brought by or against corporations,” applies to this case.

The 1st section provides, that “ suits may be brought against corporations, by their corporate names, before any court or magistrate of competent jurisdiction, by summons, which may be served on the president or other principal officer, or on the cashier, treasurer, secretary, or chief clerk of such corporation thus giving a wider scope for the service of a summons than existed for the service of process at common law.

The 2d section made an important innovation, by enacting that, “if any corporation, summoned as aforesaid, shall not appear by their officer, agent or attorney, at the time mentioned in said summons, then, or at any time afterwards, on proof of the service of the summons, by the oath or affirmation of the officer serving the same, judgment by default shall be rendered against said corporation, for the sum which,'to the court or magistrate, shall appear to be due.”

The 3d section, after distinguishing between the form of execution issued by a magistrate and the form of that issued out of any court, declares, that, “any execution so issued, and directed to any sheriff, constable or other proper officer, shall be served by the said officer going to the bankinghouse or other principal office of the corporation, at their usual office hours, and demanding of the president or other chief officer, cashier, treasurer, secretary or chief clerk of said corporation, the amount of said execution, with legal costs ; and if the same is not, forthwith paid in lawful money, or if no person can be found on whom demand may be made as aforesaid, then such sheriff, constable or other officer, is hereby authorized and required to seize any personal property of said corporation, sufficient for the debt, interest and costs ; but if no sufficient personal property can be found as aforesaid, then, in case of execution out of any court, the levy may be on the real estate of the corporation ; and in case of execution issued by any magistrate as aforesaid, where no sufficient personal estate can be found as aforesaid, the plaintiff'may file in the court of common pleas a transcript of the judgment, as in other casesand concludes with a proviso particularly relating to banking companies.

These provisions are not in the slightest degree modified by any subsequent clauses of the act, and when applied to corporations existing within the borders of our own commonwealth, are clear, intelligible and effective; but when attempted to be extended to the case of a foreign corporation, whose officer happens to be within our jurisdiction at the time of serving the summons, must be found tobe strained, perplexed and inadequate. The legislature intended the judgment by default, under the 2d section, to be the foundation of an execution under the 3d, and yet the mode pointed out of serving the execution, can be pursued only in relation to a corporation within our own state. If the legislature contemplated giving to the courts authority to render judgment by default of appearance, against a foreign corporation, upon the service of a summons, merely upon the person of its officer found within our jurisdiction, it is reasonable to presume that they would have employed unequivocal terms to express their purpose. Such a departure from well established principles ought not to be inferred from language which plainly has a different meaning, and to which full and complete effect can be given, without distorting it from its obvious interpretation. The object of a plaintiff in obtaining such a judgment, would, in most instances, be, to transfer an exemplification of the record of it into the jurisdiction of the sovereignty in which the corporation exists, and thus to carry it into effect. Whether such an experiment would be sanctioned in any other state or jurisdiction, it is useless here to inquire; but I should deem the act of a court in Pennsylvania, by which the question could be presented, as the allegation of an authority not conferred, and not intended to be conferred by our own legislature. The conclusion then is irresistible. Unless such a judgment could be rendered on default of the appearance required, the act of the 22d of March 1817 does not help the present plaintiff.

This question has never perhaps been authoritatively determined. In 1822, the point was seriously agitated, whether the act was not to be restricted to banking institutions, and though this idea was, upon sufficient grounds, rejected by the supreme court, yet Chief Justice Tilghman, in delivering judgment in the Washington and Pittsburgh Turnpike Company v. Cullen, 8 Serg. & Rawle 517, uses language, which, proceeding from a Pennsylvania judge, I think, plainly shows that he did not contemplate, as included within the act, corporations beyond the limits of our own state. The exact question, however, was not suggested. But in Bushel v. The Commonwealth Insurance Company, 15 Serg. & Rawle 183, Judge Duncan, though he was overruled on the main point of the cause relative to a foreign attachment against a corporation, vet pronounced, without dissent, the opinion, for which he gave his reasons somewhat at large, that the act of 181? does not comprehend foreign corporations.

An intimation of sentiment has therefore been thrown out by one, and a decided expression of views deliberately uttered by another eminent judge, in support of the opinion now delivered.

I have had some hesitation upon the point, whether the court should not postpone pronouncing their determination until called upon to render judgment on default of appearance, under the second section of the act, but upon reflection, it is considered that as the service of the writ cannot be sustained, either at common law or under the act of assembly, the person on whom the service is returned to have been made, is entitled to a decision of the question upon the present application.

Rule absolute.