Latimer v. Union Pacific Ry.

• Decision Date: 31 October 1868
• Parties: JAMES M. LATIMER et al., Plaintiffs in Error, v. THE UNION PACIFIC RAILWAY, EASTERN DIVISION, Defendant in Error.
• Court: Missouri Supreme Court

43 Mo. 105

JAMES M. LATIMER et al., Plaintiffs in Error,

v.THE UNION PACIFIC RAILWAY, EASTERN DIVISION, Defendant in Error.

Supreme Court of Missouri.

October Term, 1868.

Error to St. Louis Circuit Court.

This was a suit brought upon a judgment rendered in the State of New York against the defendant, which was a corporation under the laws of Kansas. The answer denied that there was any judgment, or any judgment that was binding. The judgment, when exhibited in evidence, showed that the service was made by serving a copy of the writ and petition upon Adolphus Meier, a director of the corporation. It was proved on the trial that the defendant had no office in New York, nor in the State of New York, nor had its officers any place of business in said State, and that Meier was only temporarily in New York; that he had no other office in said company than as director, and was not authorized to act for them. For his own information, merely, he made inquiries of some lawyers about other suits of the company. The petition in the original case in New York averred that the contract sued on was made in that State.

Sharp & Broadhead, for plaintiffs in error.

I. The summons was served personally on Adolphus Meier, a director of the company, in the city of New York.

II. The cause of action arose in the city and State of New York. Subdivision 1 of section 134 of the code of procedure relating to the service of summons is as follows: “If the suit be against a corporation--to the president or other head of the corporation, secretary, cashier, treasurer, a director, or managing agent thereof; but such service can be made, in respect to a foreign corporation, only when it has property within this State, or the cause of action arose therein, or when such service shall be made within this State, personally, upon the president, treasurer, or secretary thereof.” As it appears that the cause of action arose in the State of New York, the service upon a director is within the meaning of the foregoing section.

III. The defendant has never moved to set aside the judgment, and more than one year has elapsed since its rendition. (16 How. 129.) The service is good under the act of 1855. (Laws of N. Y., 1855, p. 470.) The second section of this act authorizes service on any person acting as agent for the corporation, or doing business for it. It appears that Adolphus Meier was doing business for the defendant in New York at the time of the service upon him.

IV. This is a judgment of a court of competent jurisdiction, and if a judgment might, under any circumstances, have been rendered against the defendant after service upon a director, this court is bound to presume that the facts and circumstances existed which authorized the judgment-- omnia præsumuntur rite et solemniter esse acta. (Broom's Maxims, 637; 1 T. R. 145-6.)

V. The only question, then, which can arise in this case is, whether a corporation can be sued out of the State which created it. The doctrine of the common law was that it could not; but there is scarcely a State in the Union which has not, by express statute, declared to the contrary. (Libby v. The Portland Stage Company, 9 N. H. 396; Moulin v. Insurance Co. 4 Zabr. 222.) If the corporation can be sued by service upon its agents, the State may certainly determine what agents may be served with notice--whether the president, cashier, or one of the directors; they are all but agents of the corporation, and the corporation can only act by its agents.

Glover & Shepley, for defendant in error.

I. This judgment, even in the State of New York, does not operate as a personal judgment, and the service thus made is regarded in that State only as a substitute for publication of notice of suit. The courts of the State of New York have uniformly held that the service of a summons upon any officer, even the president, of a foreign corporation, who happens to be temporarily in that State, and who does not voluntarily appear, does not give the court jurisdiction of the defendant (the corporation) for the purpose of rendering a personal judgment upon contracts made in that State, or for debts due to residents of that State. Such a service was to be regarded, for all practical purposes, as simply a statutory notice that proceedings were about to be instituted against defendant's property. (Hurlburt v. Hope Mut. Ins. Co., 4 How. Pr. 275; same case affirmed by full bench, id. 415; Brewster v. Mich. Cen. R.R. Co., 5 How. Pr. 183.)

II. The summons in this case being equivalent only to an order of publication, and it not being followed up by any attachment of defendant's property in the State of New York, the judgment is a nullity even in the State of New York. (Brewster v. Mich. Cen. R.R. Co., 5 How. Pr. 183.)

III. Even if the judgment upon such notice had been, in all respects, as effectual as any judgment within the limits of the State of New York, yet it is not competent for the legislature of the State of New York, in such a case as this, to authorize the court to give any judgment that should have any extra territorial force. (Sto. Confl. Laws, § 539; Hopkirk v. Bridges, 4 Hen. & Mum. 413; Miller v. Sharp, 3 Rand. 41; Norton v. Bodly, 4 Mon. 434; Maude v. Rodes, 4 Dan. 144; Hunt v. Johnson, Freem. Ch. 282; Foster v. Glazener, 27 Ala. 396.) In the language of the Supreme Court of Alabama, in the case of Foster v. Glazener, 27 Ala. 396,“It is a well-settled principle of international law that every attempt on the part of one nation or State, by its legislation, to grant jurisdiction to its courts over persons or property not within its territory is regarded elsewhere as mere usurpation, and all judicial proceedings in virtue of it are held utterly void for every purpose.” If the judgment rendered in New York is held to be a valid judgment here, then the effect is that, whenever a creditor of any corporation, residing in any State of this Union, can find any officer of any such corporation in or passing through the State of New York, the creditor, by serving a summons upon such officer, can compel the corporation to appear and litigate in the State of New York, perhaps thousands of miles away from its home and the transactions out of which the suit grew. (Darcy v. Ketchum, 11 How. 165; Moulin v. Insurance Company, 4 Zabr. 234, 245.)

The case quoted from 9 New Hampshire, 396, only holds that, by the law of the State, service as made there is sufficient, as that is equal to an order of publication, and, as attachment in that State issues upon all writs of summons, the res was before the court. In addition, the corporation had a place of business and officers in that State. The case cited by plaintiff from 16 Howard has no bearing upon the question, as it was against a domestic corporation, and only raises questions as to service upon such a corporation.

WAGNER, Judge, delivered the opinion...