98 N.E.2d 33 (Ohio 1951), 32161, Perkins v. Benguet Consol. Min. Co.

Docket Nº:32161, 32162.
Citation:98 N.E.2d 33, 155 Ohio St. 116
Opinion Judge:TAFT, J.
Party Name:PERKINS v. BENGUET CONSOL. MINING CO. et al. (Two cases.)
Attorney:Gorman, Silversteen & Davis, Cincinnati, for appellant., Lucien H. Mercier, of Washington, D.C., Ely, White & Davidson and Nichols, Speidel & Nichols, all of Batavia, for appellees. Messrs. Gorman, Silversteen & Davis, for appellant. Mr. Lucien H. Mercier, Mr. Ely, White & Davidson and Messrs. N...
Judge Panel:ZIMMERMAN, STEWART, MIDDLETON and MATTHIAS, JJ., concur. WEYGANDT, C. J., and HART, J., dissent.
Case Date:March 21, 1951
Court:Supreme Court of Ohio
 
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98 N.E.2d 33 (Ohio 1951)

155 Ohio St. 116

PERKINS

v.

BENGUET CONSOL. MINING CO. et al. (Two cases.)

Nos. 32161, 32162.

Supreme Court of Ohio.

March 21, 1951

Page 34

Syllabus by the Court [155 Ohio St. 117]

1. The doing of business in this state by a foreign corporation, which has not appointed a statutory agent upon whom service of process against the corporation can be made in this state or otherwise consented to service of summons upon it in actions brought in this state, will not make the corporation subject to service of summons in an action in personam brought in the courts of this state to enforce a cause of action not arising in this state and in no way related to the business or activities of the corporation in this state.

2. An organization, organized under the laws of another state or country, is a foreign corporation if it has the essential attributes of a corporation, within the meaning of that word as used in the Ohio statutes, even though it does not have all the attributes of an Ohio corporation.

3. In order to be a corporation, an organization must be a legal unit under or be recognized as an entity by the law of the state or country in which it was organized.

4. Where changes in the identity of its shareholders or members do not affect the continued existence of an organization, such organization has the perpetual succession which is an essential attribute of a corporation.

5. An organization may have such perpetual succession and be a corporation even though its right to exist as a corporation is limited to a definite number of years.

6. Whether an organization is a corporation depends not upon the name by which it is called but upon whether it has the essential attributes of a corporation.

7. Where an organization is regarded by the law of the foreign state or country in which it was organized as a legal unit or entity possessing rights and obligations separate and distinct from those of its shareholders or members and as an organization whose continued existence will not be affected by changes in the identity of its members or shareholders, such organization will be regarded in Ohio as a foreign corporation.

8. The charter of a corporation may consist only of the statutes under which it was organized in its articles of incorporation as filed with a public official pursuant to the provisions of those statutes.

9. Extrajudicial admissions of a fact do not necessarily prevent a party from contending that such a fact is otherwise than as indicated by such admissions.

10. Where a shareholder of an organization shows no reasonable reliance on any representation of such organization or action amounting to a representation that such organization was not a corporation, or where such shareholder does not show that [155 Ohio St. 118] he was prejudiced in any way by a change in position made in such reliance upon any such action or representation, such organization is not estopped as against such shareholder from contending that it is a corporation.

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Plaintiff, a nonresident of Ohio, brought these two actions in the Common Pleas Court of Clermont County against certain parties, including the Benguet Consolidated Mining Company, which is herein referred to as defendant. Defendant is admittedly a sociedad anonima organized in 1903 under the laws of the Philippine Islands. Service of process in each case was made in Clermont county upon John W. Haussermann as parent and general manager of defendant. In each case defendant appeared specially and only for the purpose of making a motion to quash service of summons.

Defendant's motions were granted by the trial court on the grounds that (1) defendant is a foreign corporation and, therefore, cannot be served with summons in accordance with the provisions of the Ohio statutes with reference to service on a partnership, and (2) the business done by the defendant in Ohio was insufficient to legally authorize service of process upon defendant in Ohio.

The orders of the Common Pleas Court granting those motions were affirmed by the Court of Appeals.

The cases are before this court on appeals, motions to certify having been allowed.

Gorman, Silversteen & Davis, Cincinnati, for appellant.

Lucien H. Mercier, of Washington, D.C., Ely, White & Davidson and Nichols, Speidel & Nichols, all of Batavia, for appellees. [155 Ohio St. 119]

TAFT, Judge.

If defendant is a corporation, then the judgments of the Court of Appeals must be affirmed.

Admittedly, defendant has not appointed any statutory agent upon whom service of process against defendant can be made in Ohio and defendant has not otherwise consented to service of summons upon it in actions brought in Ohio. An examination of the petitions in the instant cases discloses that neither petition states any cause of action in any way related to the business or activities of defendant in Ohio.

The question is not whether a plaintiff can maintain a suit against a nonresident on a transitory cause of action arising outside Ohio and in no way related to the business or activities of the nonresident in Ohio. This court has held that a plaintiff may where 'personal service is had' on such nonresident (Mattone v. Argentina, 123 Ohio St. 393, 175 N.E. 603) or the defendant has expressly or impliedly consented to service, as by making a voluntary general appearance in the action. Handy v. Insurance Co., 37 Ohio St. 366.

However, the doing of business in a state by a foreign corporation, which has not appointed a statutory agent upon whom service of process against the corporation can be made in that state or otherwise consented to service of summons upon it in actions brought in that state, will not make the corporation subject to service of summons in an action in personam brought in the courts of that state to enforce a cause of action in no way related to the business or activities of the corporation in that state. Old Wayne Mutual Life Ass'n of Indianapolis v. McDonough, 204 U.S. 8, 22, 23, 27 S.Ct. 236, 51 L.Ed. 345; Simon v. Southern Ry. Co., 236 U.S. 115, 129, 130 and 132, 35 S.Ct. 255, 59 L.Ed. 492. See, also, Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U.S. 93, 95 and 96, 37 S.Ct. 344, 61 L.Ed. 610; Robert Mitchell Furniture Co. v. Selden Breck Construction Co., 257 U.S. 213, 215 and 216, 42 S.Ct. 84, 66 L.Ed. 201; International Shoe Co. [155 Ohio St. 120] v. State of Washington, 326 U.S. 310, 319 and 320, 66 S.Ct. 154, 90 L.Ed. 95.

An examination of the opinions of the Supreme Court of the United States in the foregoing cases will clearly disclose that service of summons in such an instance would be void as wanting in due process of law. This problem has given rise to a great volume of litigation. See annotations at 30 A.L.R. 225, and 96 A.L.R. 366. While there are many cases holding to the contrary, we believe that, if, as the foregoing Supreme Court decisions indicate, service of a summons in such an instance would be void as wanting in due process of

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law within the meaning of that term as used in the 14th Amendment to the Constitution of the United States, this court should follow the law on such a federal constitutional question as announced in those decisions by the Supreme Court of the United States. We are unable to reconcile the decisions in such cases as Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 115 N.E. 915, with the views which have heretofore been expressed by the Supreme Court of the United States on this question arising under the federal Constitution. However, the Supreme Court of the United States apparently has distinguished the Tauza case and indicated that it would not go to the extent which the New York Court of Appeals went in sustaining the service of process in that case. International Shoe Co. v. Washington, supra, 326 U.S. at page 318, 319, 320, 66 S.Ct. at page 154, 90 L.Ed. 95. The cases of Cone v. New...

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