Berry v. Arnoldware-Rogers, Inc.

• Decision Date: 08 April 1968
• Docket Number: ARNOLDWARE-ROGER,INC,No. 1106,1106
• Citation: 243 A.2d 781,127 Vt. 188
• Parties: Janette BERRY v.
• Court: Vermont Supreme Court

Page 781

243 A.2d 781

127 Vt. 188

Janette BERRY v. ARNOLDWARE-ROGERS, INC.

No. 1106.

Supreme Court of Vermont.

April 8, 1968.

Motion for Reargument Denied June 4, 1968.

Chapman & MacBride, Brattleboro, for plaintiff

John S. Burgess, Brattleboro, Black & Plante, White River Junction, Harry A. Black, White River Junction, on the brief, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

PER CURIAM.

This action was dismissed below for want of proper service. The officer's return of service reads:

I served this writ by attaching as the property of the within-named defendants Arnoldware-Rogers, Inc. and David E. Martinelli the sum of twenty thousand dollars ($20,000) in United States currency in the hands or possession of the Vermont Bank & Trust Company, by taking the same into my possession; and on this same day I notified the defendant, Arnoldware-Rogers, Inc. of such attachment by leaving, for said defendant, a true and attested copy of this writ, with a description of the personal property The defendant Martinelli is no longer involved in this case.

so attached, with this my return endorsed thereon, with Robert C. Lovejoy, Treasurer of the Vermont Bank & Trust Company, in whose care the attached personal property was; and on this same day I left an additional true and attested copy of this writ, with a description of the personal property so attached, with this my return endorsed thereon, with Robert C. Lovejoy, Treasurer of The Vermont Bank & Trust Company, in whose care the attached personal property was; and on March 18, 1966 I made service of this writ upon the defendant, Arnoldware-Rogers, Inc. by delivering a true and attested copy thereof with a description of the personal property attached, with this my return endorsed thereon, to John S. Burgess, said defendant's attorney, as the said corporate defendant's agent authorized by law to receive service of process, said corporate defendant having no known clerk, officer, managing agent, general agent, superintendent, stockholder, or other agent authorized by appointment or by law to receive service of process, within the State of Vermont, said domestic corporation having removed from this state all such officers, agents and stockholders, including its clerk.

For the purposes of the question presently before us, this return must be taken as truly stating the facts of the matter. Shapiro v. Reed, 98 Vt. 76, 80, 126 A. 496. No proceeding by or against the process server seeking to challenge the facts set out in the return has been brought. See Casellini-Venable Corp. v. Rogers, 123 Vt. 427, 192 A.2d 458.

The defendant corporation does not deny that the persons appropriate to accept service under 12 V.S.A. § 813 were, as stated in the return, absent from the state at the instance of the defendant. Its attack claims a jurisdictional shortcoming as a matter of law, because service on any of the persons specifically designated in 12 V.S.A. § 813 was not accomplished. Since the presence of the defendant in court, raising this and other defenses, establishes actual notice of the pendency of this litigation as well as opportunity to be heard, it can rest its case only on the legal, rather than the actual, sufficiency of the service.

In a legal sense, a domestic corporation cannot absent itself from the jurisdiction under whose laws, and by whose grace and favor, it exists. It is entitled to insist that actions against it in our courts be instituted according to the prescriptions of the applicable statute, 12 V.S.A. § 813. However, it is a requirement of the law of Vermont, upon which the very existence of this corporate entity depends, that at least two of the directors (11 V.S.A. § 221) and the clerk (11 V.S.A. § 229) reside in the state. The return discloses that the defendant corporation has violated these legal requirements.

The right of the defendant to insist on service according to the provisions of 12 V.S.A. § 813 has been forfeited by the actions of that corporation making compliance impossible. The jurisdiction of the courts of the state of domicile cannot be so wrongfully ousted. See In re Consolidated Rendering Co., 80 Vt. 55, 78-79, 66 A. 790. Se long as means reasonable and appropriate, as a matter of due process, for giving notice of the pendency of this litigation were adopted, the matter is proper for prosecution. Eureka Lake and Yuba Canal Co. v. Superior Court of Yuba County, 116 U.S. 410, 418, 6 S.Ct. 429, 29 L.Ed. 671.

In this view of the matter, the...