Wickham v. South Shore Lumber Co., 89 Wis. 23

Wickham v. South Shore Lumber Co.

89 Wis. 23 | Wis. | 1894

NewmaN, J.

The defendant is a domestic corporation. The law requires it to have its principal office within this-*26.state, where it shall keep its general and. principal books of account, including its stock books, and that its principal managing officer or superintendent shall reside within this ■state. R. S. sec. 1750. These requirements of the statute are all ignored by the defendant. It keeps its principal office, writh its principal books of account, including the .stock books, at Minneapolis, in the state of Minnesota, and its principal managing agent resides there. None of its general officers reside within this state. Sprague, its principal managing officer, claims to be a resident of this state, but he actually resides at Minneapolis; his family resides there. What the statute requires is that the principal managing agent shall actually reside within this state. A mere constructive residence does not answer the terms of the .statute. The purpose of the statute is that domestic corporations shall be at all times within the jurisdiction of the ■state, and subject to the process of its courts. Unless some ■of its general officers or directors, or its managing agent, resides within the state, there will be times when the process ■of the courts cannot be served upon the corporation, for want of a person with whom to leave a copy. R. S. sec. •2687, subd. 10. Generally, the relation of Mr. Harris to the ■defendant may not be strictly that of “ managing agent,” within the meaning of the statute (Upper Miss. Transp. Co. v. Whittaker, 16 Wis. 220); but in the absence of Sprague from the state he seems to have general supervision of all ■the affairs of the corporation within the state. It will not be presumed that the corporation intended to put itself outside the jurisdiction of the state, or beyond the reach of the process of the courts of the state. It will rather be presumed that it intended Mr. Harris to be its managing agent in the absence of Mr. Sprague from the state; and the manner in which some of its business was accustomed to be done .accords with that presumption. It could not lawfully be without an officer residing within the state upon whom *27service of process could lawfully be made. It is found that Mr. Harris is its only agent within the state who seems to have general powers. Eor this purpose he must be held to he its “ managing agent,” within the intention of the statute.

But} if the service was insufficient, the point was waived by the general appearance of the garnishee in the action. No doubt the motion to set aside the judgment on the ground that the garnishee is not indebted to the defendant had the effect of a general appearance in the action. It was a motion on a ground touching the merits of the action. It was consistent only with the theory that the court had jurisdiction to determine that question. The appearance, although made after judgment, has the effect to waive the want of service of the summons, and to cure any invalidity in the judgment. Grantier v. Rosecrance, 27 Wis. 488; Alderson v. White, 32 Wis. 308; Gray v. Gates, 37 Wis. 614; German Mut. F. F. Ins. Co. v. Decker, 74 Wis. 556. Although a voluntary appearance by a garnishee, without service of process, does not give jurisdiction over the defendant in the principal action, so as that the judgment in the garnishee action .shah be binding upon him (Edler v. Hasche, 67 Wis. 653), there seems to be no reason why such voluntary appearance should not give complete jurisdiction over the garnishee. It is a voluntary submission to the court of the question whether he is liable to the plaintiff as garnishee. He must abide by the consequences of such voluntary submission.

It was too late to move for a dismissal of the action for .abuse of process after judgment.

By the Court.— The order of the circuit court is affirmed.