Arizona Barite Co. v. Western-Knapp Engineering Co.

Decision Date13 December 1948
Docket NumberNo. 11853.,11853.
Citation170 F.2d 684
PartiesARIZONA BARITE CO. v. WESTERN-KNAPP ENGINEERING CO.
CourtU.S. Court of Appeals — Ninth Circuit

Stockton & Karam and Fred J. Elliott, both of Phoenix, Ariz., and Fulbright, Crooker, Freeman & Bates, of Houston, Tex., for appellant.

Leslie Parry and Herbert Mallamo, both of Phoenix, Ariz., and Arthur P. Shapro and August B. Rothschild, both of San Francisco, Cal., for appellee.

Before MATHEWS and HEALY, Circuit Judges, and BLACK, District Judge.

MATHEWS, Circuit Judge.

On August 8, 1945, appellee, Western-Knapp Engineering Company, a California corporation, appointed J. P. Keller, a resident of Maricopa County, Arizona, as its statutory agent upon whom process might be served and filed the appointment with the Arizona Corporation Commission. Thereupon, on August 8, 1945, appellee was duly admitted and authorized to transact business in Arizona.1 It did so until June 6, 1946. On June 6, 1946, it filed with the Corporation Commission what purported to be a revocation of the appointment of Keller as its statutory agent. It never appointed anyone in Keller's place. It transacted no business in Arizona after June 6, 1946.

On December 12, 1946, a certificate stating that appellee had elected to wind up and dissolve was filed with the Secretary of State of California. On January 3, 1947, a certificate stating that appellee had been completely wound up was filed with the Secretary.2 Despite the filing of these certificates, hereafter called the winding-up certificates, appellee retained its corporate existence and some of its corporate powers, including the power to sue and be sued, and, when exercising such powers, acted by and through its directors (J. N. How, J. H. How and Clara How).3

On April 28, 1947, appellant Arizona Barite Company, an Arizona corporation, brought an action against appellee in the Superior Court of Maricopa County, Arizona, for damages in the sum of $14,566.98 alleged to have resulted from the breach of a contract which, according to the complaint, was made by appellant and appellee on August 9, 1945, was to be performed in Maricopa County and was breached by appellee in Maricopa County before June 6, 1946. Thus, according to the complaint, the claim or cause of action sued on arose in Maricopa County out of business transacted by appellee in Maricopa County after the appointment of Keller as its statutory agent and before the purported revocation of that appointment.

A summons was issued against appellee on April 28, 1947, and was served in Maricopa County by the sheriff thereof by delivering a copy of the summons and of the complaint to Keller as appellee's statutory agent on May 2, 1947.4 On May 21, 1947, acting by and through its directors, appellee removed the action to the United States District Court for the District of Arizona. On June 24, 1947, acting by and through its directors, appellee moved the District Court for an order quashing the service of the summons issued on April 28, 1947. On October 6, 1947, the District Court entered an order granting the motion of June 24, 1947.

An additional summons was issued on November 13, 1947, and was served in the District of Arizona by the marshal thereof by depositing two copies of the summons and of the complaint in the office of the Corporation Commission on December 5, 1947.5 On December 26, 1947, acting by and through its directors, appellee moved the District Court for an order quashing the service of the summons issued on November 13, 1947. On December 29, 1947, the District Court entered an order granting the motion of December 26, 1947. From the orders of October 6, 1947, and December 29, 1947, this appeal was taken on January 3, 1948.

Appellee has moved to dismiss the appeal on the ground that the orders were not final decisions.6 As indicated above, the orders quashed the service of the summons issued on April 28, 1947, and the service of the summons issued on November 13, 1947. They did so, not because of any defect in the form of either summons,7 but on the ground stated in the motions to quash. That ground was, in substance, that, because appellee had filed the purported revocation of the appointment of Keller as its statutory agent, had ceased to transact business in Arizona and had filed the winding-up certificates, there was and could be no valid service of summons in this action. Hence the orders were final decisions and were appealable.8 The motion to dismiss the appeal is denied.

The appeal presents two questions — whether the service of the summons issued on April 28, 1947, was valid and whether the service of the summons issued on November 13, 1947, was valid. A determination of these questions requires an examination of §§ 5 and 8 of Article 14 of the Constitution of Arizona and §§ 21-305, 21-314, 53-305, 53-801, 53-802, and 53-804 of the Arizona Code 1939, all of which were in effect on August 8, 1945,9 and at all times thereafter.

Section 5 provides: "No corporation organized outside of the limits of this state10 shall be allowed to transact business within this state on more favorable conditions that are prescribed by law for similar corporations organized under the laws of this state * * *."

Section 8 provides: "No domestic or foreign corporation shall do any business in this state without having * * * an authorized agent, or agents, in the state upon whom process may be served. Suit may be maintained against a foreign corporation in the county where an agent of such corporation may be found, or in the county where the cause of action may arise."

Section 21-305 provides that service of summons may be made "Upon a domestic or foreign corporation * * * by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process."11

Section 21-314 provides: "When a domestic corporation does not have an officer or agent in this state upon whom legal service of process can be made, summons may be served upon such corporation by depositing two 2 copies thereof in the office of the corporation commission which shall be deemed personal service on such corporation."

Section 53-305 provides: "Corporation shall appoint a bona fide resident of this state * * * its agent, who shall be known as its statutory agent, upon whom all notices and processes, including service of summons, may be served, and when so served, shall be lawful personal service on such corporation. The appointment shall be filed with the corporation commission."

Section 53-801 provides: "Any foreign corporation, before entering upon, doing, or transacting any business, enterprise, or occupation, in this state shall: * * * Appoint in writing, over the hand of its president or other chief officer, attested by its secretary, a statutory agent in each county in this state in which such corporation proposes to carry on any business as required of domestic corporations by § 53-305 * * *."

Section 53-802 provides: "No foreign corporation shall transact any business in this state until it has complied with the requirements of the preceding section § 53-801, and every act done by said corporation prior thereto shall be void."

Section 53-804 provides: "Upon complying with the provisions of this article §§ 53-801 to 53-805 any foreign corporation shall have and enjoy the same rights and privileges held and enjoyed by a like domestic corporation."

Arizona corporations, including those...

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7 cases
  • Steel v. U.S.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • April 7, 1987
    ...defeat personal jurisdiction by a move away from the state in which the underlying events took place. See Arizona Barite Co. v. Western-Knapp Eng'g Co., 170 F.2d 684 (9th Cir.1948) (cessation of business in state does not insulate corporation from jurisdiction for acts committed while doing......
  • Gibbons & Reed Co. v. Standard Accident Insurance Co.
    • United States
    • U.S. District Court — District of Utah
    • October 31, 1960
    ...subject to suits within this state upon claims or causes of action arising outside of the state. See Arizona Barite Co. v. Western-Knapp Engineering Co., 9 Cir., 1948, 170 F.2d 684. Cf. National Liberty Insurance Co. v. Trattner, 1926, 173 Ark. 480, 292 S. W. In view of the foregoing consid......
  • Miller v. S&S Hay Co.
    • United States
    • U.S. District Court — Eastern District of California
    • March 26, 2013
    ...personal jurisdiction by a move away from the state in which the underlying events took place." Id. See, Arizona Barite Co. v. Western-Knapp Engg Co., 170 F.2d 684 (9th Cir.1948) (finding that cessation of business in state does not insulate corporation from jurisdiction for acts committed ......
  • Sec. & Exch. Comm'n v. Nevatia
    • United States
    • U.S. District Court — Northern District of California
    • October 19, 2015
    ...the underlying events took place." Steel v. United States, 813 F.2d 1545, 1549 (9th Cir. 1987) (citing Ariz. Barite Co. v. Western-Knapp Eng'g Co., 170 F.2d 684 (9th Cir. 1948)). This Court therefore has personal jurisdiction over Kumar. 2. Adequacy of Service Courts must determine the adeq......
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