Klopp, Bartlett & Co. v. Creston City Guarantee Water-Works Co

• Decision Date: 11 June 1892
• Citation: 52 N.W. 819,34 Neb. 808
• Parties: KLOPP, BARTLETT & CO. v. CRESTON CITY GUARANTEE WATER-WORKS CO
• Court: Nebraska Supreme Court

52 N.W. 819

34 Neb. 808

KLOPP, BARTLETT & CO. v. CRESTON CITY GUARANTEE WATER-WORKS CO

Supreme Court of Nebraska

June 11, 1892

ERROR to the district court for Douglas county. Tried below before CLARKSON, J.

REVERSED AND REMANDED.

John W Lytle, for plaintiff in error, cited, contending that the service was sufficient: C., B. & Q. R. Co. v Manning, 23 Neb. 552; House v. Cooper, 30 Barb. [N. Y.], 157; that there was a general appearance by defendant: Porter v. R. Co., 1 Neb. 14; Crowell v. Galloway, 3 Id., 220; Bucklin v. Strickler, 32 Id 602.

Chas. Offutt, contra:

A foreign corporation having no business in Nebraska cannot be sued in a Nebraska court by serving a summons on its vice president, who is simply passing through the state. (Fitzgerald v. Con. Co., 137 U.S. 98; C., B. & Q. R. Co. v. Manning, 23 Neb. 558; Porter v. R. Co., 1 Id., 15; St. Clair v. Cox, 106 U.S. 350; Clews v. Iron Co., 44 F. [N. Y.], 31; Phillips v. Library Co., 21 A. [Pa.], 640; Mulhearn v. Pub. Co., 20 A. [N. J.], 760; Blackstone Mfg. Co. v. Inhabitants, 13 Gray [Mass.], 488; R. Co. v. Harris, 12 Wall. [U. S.], 82.) The defective service was not waived.

OPINION

MAXWELL, CH. J.

The plaintiff brought an action against the defendant in the county court of Douglas county upon the following account:

"OMAHA, NEB., Dec. 5, 1890.

"CRESTON CITY GUARANTEE WATER-WORKS CO., CRESTON, IA.,

"To KLOPP, BARTLETT & CO., Dr.

February 18, to ptg. 100 coupon bonds

$ 81 00

February 18, to ptg. one book stock certificate

21 00

February 18, to ptg. one engraved heading for

certificate

16 00

February 18, to ptg. engraved bond

20 00

February 18, to engraving and making 5 au-

tographs

3 50

February 18, to one tint block 9x12 in

7 00

February 18, to one tint block 6x12 in

3 00

February 18, to one tint block 2x2 in

3 00

February 18, to one tint block 2x9 in

1 75

February 18, to one tint block 4x9 in

2 00

February 18, to one application blanks

5 00

February 18, to 300 cards

3 50

March 12, to 100 cards

1 50

$ 168 25

May 14, Cr. by cash

20 00

Balance due

$ 148 25"

A summons was duly issued which was served in Douglas county on David Soper, vice president of the defendant. The action was brought December 9, 1890, the return day being the 15th of that month. On that day Soper asked and obtained a continuance of the cause until the 14th of January, 1891. On the latter date the plaintiff sought and obtained a continuance until the next day. On January 15, 1891, the defendant filed a motion as follows:

"Comes now the defendant, The Creston City Guarantee Water-works Company, and appearing specially herein for the sole and only purpose of objecting to the jurisdiction of this court over the person of it, the said Creston City Guarantee Water-works Company, moves that this court refuse to proceed further herein as against said company for the reason as follows, to-wit:

"First--That said Creston City Guarantee Water-works Company is a foreign corporation organized and existing under the laws of the state of Iowa.

"Second--That it, the said defendant company, had no office of any kind nor any property, nor any managing or other agent in the state of Nebraska at the time of the institution of this action, and has not since had and has no such office, no property, no managing or other agent in the state of Nebraska at this time.

"Third--That the said David Soper, who appears upon the return of the summons herein to have been served with the said summons as the vice president of this defendant company, was at said time, as he ever since has been and now is, a resident and a citizen of the state of Illinois and a non-resident of the state of Nebraska, and was but temporarily in and passing through the county of Douglas at the time of the service of a copy of said summons upon him."

This motion was supported by an affidavit in the following words:

"STATE OF NEBRASKA, COUNTY OF DOUGLAS. SS.

"The affiant, David Soper, having been first duly sworn, deposes and says that he is now, and for more than a year last past has been, a resident and citizen of the state of Illinois, and during all of said time has been a non-resident of the state of Nebraska; that the defendant, The Creston City Guarantee Water-works Company, is a corporation organized and existing under the laws of the state of Iowa, and that said defendant corporation has not had any office in the state of Nebraska at any time, nor has it had any property in said state of Nebraska, and that said company has not had, nor has it now, any managing agent in the state of Nebraska, and did not have any agent of any kind in the state of Nebraska at the time of the institution of this action, nor has it ever had any place of business in the state of Nebraska; and this affiant further says, that at the time of the service of the summons against said defendant company upon this affiant, as shown by the return on said summons, this affiant was but transiently and temporarily passing through the county of Douglas, and that no part of said defendant company's business is transacted in the state of Nebraska; and further defendant saith not.

"DAVID SOPER.

"Subscribed in my presence and sworn to before me, by David Soper, this 17th day of January, 1891.

[SEAL.]

WILL H. THOMPSON,

"Notary Public."

Upon the showing thus made the county court overruled the special appearance of the defendant. Witnesses were called and judgment rendered in favor of the plaintiff for the amount claimed. The case was taken on error to the district court, where the judgment of the county court was reversed and, on motion of the defendant, dismissed, and these are the errors complained of.

Section 912 of the Code provides: "A summons against a corporation may be served upon the president, mayor, chairman of the board of directors or trustees, or other chief officer, or, if its chief officer be not found in the county, upon its cashier, treasurer, secretary, clerk, or managing agent; or, if none of the aforesaid officers can be found, by a copy left at the office or usual place of business of the corporation with the person having charge thereof.

"Sec. 914. When the defendant is a foreign corporation having a managing agent in this state the service may be upon such agent."

In Porter v. C. & N. W. Ry. Co., 1 Neb. 14, the agent resided at Council...