120 Minn. 422 | Minn. | 1913
Defendant is a fraternal beneficiary association, organized and
1. Defendant is a fraternal beneficiary association, incorporated under the laws of the state of Illinois. The person upon whom service of the summons was made was an agent with authority to organize local branches of the order in this state. The only question requiring consideration is whether service upon that person was sufficient to vest jurisdiction over defendant.
It is the contention of defendant that service could lawfully be made only upon the state insurance commissioner, as provided for by chapter 345, p. 469, Laws 1907 [R. L. Supp. 1909, §§ 1704—11 to 1704—41] ; while plaintiffs contend: (1] That in actions of this kind service may be made either under that statute, or upon an agent of the defendant within the state; and (2) if the statute be held to prescribe the exclusive mode of service, that it is unconsti
The statute deals with both foreign and domestic “fraternal beneficiary associations.” It provides for the incorporation of the domestic and the admission of the foreign association to transact its business in this state. One of the conditions upon which the foreign associations may be licensed in this state is that it shall “appoint in writing the insurance commissioner and his successor in office to be its true and lawful attorney, upon whom all legal process in any action or proceeding against it shall be served, and in such writing shall agree that any lawful process against it, which is served upon such attorney, shall be of the same legal force and validity, as if served upon the association,” and, further, that “service may only be made upon such attorney, must be made in duplicate and shall be deemed sufficient service upon such association: Provided, however, that no such service shall be valid or binding against any such association when it is required thereunder to file its answer * * * in less than thirty days after the date of such service.”
The language of the statute is plain and unambiguous, and the provision thereof that the service of process “may only be made upon such attorney” leaves no room for doubt upon the legislative intent to provide that method of obtaining jurisdiction of such corporations as exclusive. It was for all practical purposes so held in State v. Brotherhood of American Yeomen, 111 Minn. 39, 126 N. W. 404, though that case involved the service of a writ of mandamus under directions of the court, and not the service of a summons in a civil action. But the decision there rendered controls the present case. It was clearly not the intention of the legislature to leave the manner of service optional with the plaintiff in each case, but rather to definitely fix a single method of acquiring jurisdiction of the corporations and associations included in the particular statute. We so hold.
The further contention of plaintiff that the complaint does not allege or show that defendant is a “fraternal beneficiary association,” and therefore that the service in question was valid, is not sustained.
2. Nor do we sustain the contention that the statute in unconstitutional because of a discrimination in favor of the corporations included therein. The alleged discrimination consists in the fact that the statute grants 30 days within which the defendant may appear and answer the complaint, whereas all other foreign corporations are given but 20 days for appearance. This is not fatal to the statute. The objection is. not a matter of substance. [Reasons may have been presented to the legislature which in its judgment justified granting a longer time to answer in such cases, and we are not prepared to say that the legislative discretion was improperly exercised.
What was said in the case of Lockway v. Modern Woodmen, 116 Minn. 115, 133 N. W. 398, upon the question of the constitutionality of the statute, was with reference to the contention there made that the summons in that action was utterly void, because it required defendant to answer within 20 days, instead of 30 days, as provided by the statute. But we did not intend to be understood as intimating an opinion that the statute was unconstitutional. The question was merely suggested. Indeed, that decision proceeds upon the theory that the statute is perfectly valid, for we sustained the right of plaintiff to amend the summons by changing the same in respect to the time defendant was required to answer. The original summons limited the time to 20 days, and the amendment changed it to 30 days, so as to conform to the requirements of the statute. We sustain and uphold the statute.
3. The further contention of plaintiff that defendant’s appearance in the action was general, and therefore a waiver of proper service of the summons, requires no extended discussion. Defendant’s appearance in the action was expressly designated as special, and for the purposes of the motion only. The claim that the appearance was general is founded in the fact that defendant’s objection to the service of the summons also raised the question whether the court had jurisdiction of the action.
In that case the court said that upon a motion to set aside a judgment, shown to have been void because the court had acquired no jurisdiction in the cause, an objection distinctly made upon that ground should not be deemed to have been at the same time waived from the fact that the moving party also urged in support of his motion additional reasons not inconsistent with the alleged want of jurisdiction, nor because, by asking to file an answer, he indicated his willingness to submit to the jurisdiction of the court. The same rule was applied in Covert v. Clark, 23 Minn. 539, where the court said: “When a motion to vacate a judgment is founded upon grounds taken solely with reference to their supposed bearing upon the jurisdiction of the court to render the judgment, and solely for the purpose of attacking said jurisdiction, the appearance * * * for the purposes of the motion only, is a special appearance, which has no effect in curing any objection to the judgment for want of jurisdiction over such defendant’s person.”
The rule of these cases controls the case at bar. The appearance of defendant was special in fact, and was limited to the objections of want of jurisdiction. The Nebraska cases cited by plaintiff (Perrine v. Knights Templar, 71 Neb. 267, 98 N. W. 841, 101 N. W. 1017, and Lillie v. Modern Woodmen, 89 Neb. 1, 130 N. W. 1004) are not in point. The appearance in those cases was before the entry of judgment.
It follows that for want of legal service of the summons the
It is so ordered.