20 Ind. App. 515 | Ind. Ct. App. | 1898
Appellants sued appellee to recover damages for the alleged failure of a warranty, made by appellee to appellants, upon a cob-grinding machine purchased by the latter from the former. Summons was issued and served on J. F. Winchell, superintendent of appellee. Appellee appeared specially and moved to quash the return to the summons, which motion was overruled. Appellee, still appearing specially, filed its plea in abatement. In this plea it was averred that appellee was a corporation organized and existing under the laws of Ohio; that its principal office was in Clarke county, Ohio; that it was not, and is not incorporated in Indiana; that it did not and does not now, maintain any office in indiana, and that its officers were then and now are, nonresidents of the State of Indiana, and did then and do now, reside in Springfield, Ohio; that said Winchell, upon whom said summons was served, was not at the date of said service, nor has he since been a resident of Indiana, and that he did then and does now, reside in Ohio; that he was then and is now an employe of appellee under the title of superintendent; that he is called superintendent because he has general supervision of the mechanical departments and processes,— the appellee being engaged in the manufacture of certain agriculturual implements, etc.; that when said summons was served, said Winchell was temporarily
The appellants demurred to the plea in abatement on the ground that it did not state facts sufficient to abate the action, which demurrer was overruled. Appellants elected to stand on the demurrer, and suffered judgment against them for costs. The ruling on the demurrer is the only error assigned. It is urged by appellee that the complaint does not state any cause of action against it, and hence if it was error to overrule the demurrer to its plea in abatement, such error is harmless. Such a rule does prevail in this State, but it is not applicable here, for the reason that as the record comes to us we can not determine the sufficiency of the complaint. The rule is firmly established in this State that the appellate tribunal will not consider any question on appeal that has not been presented to the lower court for its ruling. To this general rule there is an exception, and that is where issues have been made and the sufficiency of the complaint has not been tested by demurrer, the cause tried on its merits and judgment pronounced, then on appeal, by proper assignment of error, this court may pass upon the sufficiency of the complaint. After pleading to the merits of a cause, the sufficiency of the complaint is, until its final disposition, before the court; but where there has been no pleading to the merits of a cause, but only a plea in abatement which challenges the jurisdiction of the court as to the person of the defendant, the sufficiency of the complaint is- not thereby presented to the court below, either directly or indirectly.
If the rule prevailed for which appellee contends, it
We come now to the only question properly presnted by the record, and that is the sufficiency of the pea in abatement. The real question is, does the plea ii abatement state facts sufficient to show that the Mrion Superior Court did not acquire jurisdiction ovr appellee? If it does, then the court correctly sustaaed the demurrer. A plea in abatement is a dilator plea, and it is not regarded favorably by the couts. It must be definite and certain, and nothing canbe supplied by intendment or construction. The plesnust not only state facts necessary to the answer, butuust also anticipate and exclude all such supposablénatter as would, if alleged, on the opposite side, defet his plea. In 1 Chitty Pl. 473 (16 Am. ed.), it is sal: “As pleas in abatement do not deny and yet tend ’> delay the trial of the merits of the action, great accurey and precision are required in framing them. They hould be certain to every intent.” In Stephen Pl. 35(9 Am. ed.) it is said: Dilatory pleas are re
Gould on PL, in speaking of the certainty required in pleas in abatement, says: “Certainty of the third sort, or ‘to a certain intent in every particular/ requires the utmost fullness and particularity of statement, as well as the highest áttainable accuracy and precision, leaving, on the one hand, nothing to be supplied by intendment or construction; and on the other no supposable special answer unobviated. The rule requiring this degree of certainty, is a rule not of ‘cor struction’ only, but also of ‘addition’; that is, it requires the pleader, not only to answer fully what 1 necessary to be answered; but also to anticipate ail exclude all such supposable matter, as would, if Alleged on the opposite side, defeat his plea.” Goulcs Pl. sec. 57. These elementary rules as to pleas n abatement have been adopted and carried into oururisprudence by the courts. Board, etc., v. LaFayette, &c., R. R. Co., 50 Ind. 85, 117; Kelly v. State, 53 Ind. 31; Needham v. Wright, 140 Ind. 190. It will be obsered that in the plea in abatement, it is not denied thathe cause of action did not arise in this State; neither oes it deny that the appellee corporation has pro-prty within this State; nor is there any averment thatt is not doing business in the State where jurisdictioiwas sought to be acquired, and lastly, it is not denierthat the officer of appellee, upon whom service wafhad, was at the time within the State as the agent ar rep
Section 313, Horner’s R. S. 1897, is as follows: “Actions may be brought against a corporation created by or under the laws of any other state, government, or county, in any court having jurisdiction of the amount demanded, by any person having a cause of action, in any county within the State where any property, credits or effects belonging to or due to the corporation may be found.” Section 313a, Horners’’ R. S. 1897, is as follows: “Any action against a corporation may be brought in any county, where the corporation has an office for the transaction of business, or any person resides upon whom process may be served against such corporation unless otherwise provided in this act.” Section 316, Horner’s R. S. 1897, provides for service of, process upon domestic or foreign corporations, and among other things it is provided that “in case the defendant be a foreign corporation, having no such person, officer or agent, resident in the State, service may be made in the same manner as against other nonresidents.”
The section just cited is lengthy, and we need not
It seems to us that in determining the question we are now considering, the several statutory provisions we have above quoted should be construed together. Section 313a, supra, was a part of the civil code of 1852, being section 196, code of 1852, but was omitted in the revision of 1881. In the subsequent revisions, however, it has been carried forward, but in Globe Accident Ins. Co. v. Reid, 19 Ind. App. 203, this court held that it was repealed by the act of 1881, overruling the case of Evansville, etc., R. R. Co. v. Spellbring, 1 Ind. App. 67, holding to the contrary. Thus we are left to consider sections 313 and 316, supra.
Under section 313, supra, actions against a foreign corporation may be brought “in any court having jurisdiction of the amount demanded, :i * * in any county within the State, where any property, moneys, credits or effects belonging or due to the corporation may be found.” There is no pretense but what the Marion Superior Court had jurisdiction of the amount demanded, and as there is no showing to the contrary by the plea in abatement, that the appellee corporation did not have apy property, moneys, credits or effects, etc., and if necessary we might assume under the strict rules of construction applicable to pleas of this character, that it did have such property, etc., and hence it was subject to be sued in such county. To properly bring appellee into court, summons had to be served upon some one, who was connected with it in an official capacity. One of such persons was its superintendent, and summons was served upon him, and the return shows that he was the highest officer of ap
Turning now to section 316, supra, we find that process can be served upon either a domestic or foreign corporation on certain of its officers, etc. If none of the officers enumerated in this section can be found, then service can be made upon any person authorized to transact business in the name of such corporation. Again, it is provided that “in case the defendant be a foreign corporation, having no such person, officer or agent, resident in the State, service may be made in the same manner as against other nonresidents.” It cannot be denied, and especially it is not denied in appellee’s plea in abatement, that a general superintendent of a corporation is an officer of such corporation, and authorized to transact business in its name.
As we have before said, we must assume from the plea itself that Winchell wras authorized to transact business for his corporation, and that he was in this jurisdiction for that purpose. So that we find that in the case before us, the service upon Winchell comes within both the spirit and letter of the statute, providing that service may be had upon certain officers of a corporation and any one authorized to transact business for it. Then by the latter clause of the section, where a defendant is a foreign corporation, and there is no such officer, etc., resident of the State, “service may be made in the same manner as against other nonresidents.” Alderson on Judicial Writs and Process, p. 202, says: “Under the common law, jurisdiction could not be acquired over a foreign corporation by the service of process on one of its officers. , But under statute a foreign corporation may be subjected to the jurisdiction of the courts of a state by personal service on the proper officer, and such service is equivalent to a personal service on a nonresident natural
In^ Illinois it has been held that if the act authorizing service of process upon corporations applied to foreign corporations at all, it did not authorize the sendee of process issued in favor of a nonresident on an officer of a foreign corporation, if he came into the
Midland Pacific R. W. Co. v. McDermid, 91 Ill. 170. Where an officer or an agent of a corporation is in another jurisdiction, representing such corporation and transacting business therein, it thereby submits itself to the jurisdiction of the courts, may be sued therein and service had upon such officer or agent. Midland Pacific R. R. Co. v. McDermid, supra; Porter v. Sewall Car-Heating Co., 7 N. Y. Supp. 166; Silsbee v. Quincy Hotel Co., 30 Ill. App. 204. Alderson on Judicial Writs and Process, at page 201, says: “A corporation doing business in a state other than where it was incorporated becomes subject to the jurisdiction of the courts of the former state, and process against it may be served on its officer or agent.” City Fire Ins. Co. v. Carrugi, 41 Ga. 660; Western Union Tel. Co. v. Pleasants, 46 Ala. 641.
In Globe Accident Ins. Co. v. Reid, supra, on a petition for rehearing, this court by Black, J., said: “A corporation organized under the laws of one state, and doing business in another state, becomes liable to be sued and served in the latter state, not merely where the action relates to business done therein, but also in transitory actions arising in another state. A corporation is not regarded as a citizen of a state
The statute in this State provides for service of process, both upon domestic and foreign corporations, and also where actions against them may be commenced. It was certainly not the intention of the legislature to confer greater privileges upon foreign than upon domestic corporations. The former are permitted to do business in this State, and it is an equitable rule that they should submit themselves to the jurisdiction of our courts in return for the reciprocal right to transact business within our borders. It is the general rule, recognized everywhere, that a natural person shall only be sued in the immediate county, or local jurisdiction of his citizenship, and this rule is applicable alike to every citizen. Yet if a citizen of Ohio comes into .our State, he may be sued in any county where found, and upon personal service of summons upon him, a judgment in personam may be rendered against him. Sec. 312 Horner’s R. S. 1897; Reed v. Browning, 130 Ind. 575.
Why is not this rule as applicable to foreign artifi
A foreign corporation is protected in all of its rights by the laws of this State, when it complies with such laws. It may transact business here; it may seek the forum of our courts to enforce its rights and collect debts due it, and it is sound reason that it should be held responsible in the same tribunals which it uses for its own benefit for obligations and liabilities here incurred. In other words if it comes within our jurisdiction to transact business for its own profit and benefit, it must in like manner respond in our courts to demands against it, accruing to our citizens arising out of its business here contracted. And we believe this to be the prevailing doctrine. In National Condensed Milk Co. v. Brandenburgh, 40 N. J. L. 111, it was said: “Since the case of Moulin v. Ins. Co., 4 Zab. 222, and 1 Dutcher 57, it must be regarded as the settled law of this court, that if a corporation makes a contract in a state other than that in which it was chartered, it thereby submits itself to the jurisdiction of such foreign sovereignty so far as to be liable to suit therein in regard to that contract, when summoned according to the laws of the state.” Mr. Justice Drummond, of the United States Circuit Court, in Wilson Packing Co. v. Hunter, vol. 11 Chicago Legal News, and also reported in 8 Central Law Journal, 333, 7 Reporter 455, said: “Now, in the case of Harris; reported
Eemembering that the case cited from 12 Wallace and the case from which we have just quoted, the jurisdiction was sustained in the absence of statutory enactment providing for service of process upon foreign corporations, how much more forcible the rule where such provision is made by statute, as in this State. In 22 Am. and Eng. Enc. Law, p. 118, speaking of statutes relating to service of process on corporations, it is said: “It has been decided that since the object of such statutes is merely to carry out the principle that no proceeding may be had against the defendant until due notice has been given him, a service which virtually accomplishes this object will not be held invalid, if the statute is capable of a double construction.” St. Louis, etc., R. W. Co. v. Yocum, 34 Ark. 493; Ghiradelli v. Greene, 56 Col. 629; Cicero Tp. v. Shirk, 122 Ind. 572; Nye v. Burlington, etc., R. R. Co., 60 Vt. 585, 11 Atl. 689; Pope v. Terre Haute, etc., Mfg. Co., 87 N. Y. 137. It has also been held that such statutes, being of a' remedial nature, are to receive a liberal construction. Peoria Ins. Co. v. Warner, 28 Ill. 429; Pope v. Terre Haute, etc., Mfg. Co., supra; Cincinnati, etc., R. R. Co. v. McDougall, 108 Ind. 179.
So far as we have been able to investigate, we do not find any state having statutory provisions identical to ours, in regard to service upon corporations. This being the case, there is no case in other states construing like provisions. We do not find, however, any state with broader or more liberal provisions than our own. But touching the modern tendency toward
After quoting the statute which authorizes service of process upon certain officers of a foreign corporation, the court said: “Now, suppose a foreign corporation comes into this State and purchases goods to be paid for here, must the seller go into another state or perhaps to a foreign country to recover for the same? This is true if service cannot be had upon the
Judge Baker, of the United States Court for the district of Indiana, has recently passed upon the question we are now considering, in the case of Scofield v. Peter Scheonhoffer Brewing Co. The case is not reported, but the facts are substantially as follows: Scofield sued the Brewing Company in the Elkhart Circuit Court, to recover for alleged personal injuries. Summons was served upon one Howe, as the agent of
This is the strongest case we have found, and while, in our judgment, the rule announced is carried to the very border line and extreme limits, it is entitled to much weight, coming as it does from one so profoundly learned in the law, and one who has had such a long experience, both as a lawyer and a judge. We do not feel like closing this opinion without remarking that there are some courts of high standing, that have not carried the rule so far as expressed herein, and