Burns v. White Swan Min. Co.

• Decision Date: 26 June 1899
• Citation: 57 P. 637,35 Or. 305
• Parties: BURNS v. WHITE SWAN MIN. CO.
• Court: Oregon Supreme Court

57 P. 637

35 Or. 305

BURNS v. WHITE SWAN MIN. CO.

Supreme Court of Oregon

June 26, 1899

Appeal from circuit court, Baker county; Robert Eakin, Judge.

Suit by John R. Burns against the White Swan Mining Company. From a judgment dismissing the complaint, plaintiff appeals. Reversed.

This is a suit to foreclose certain miners' liens. The transcript shows: That on February 11, 1897, 21 employés of the White Swan Mining Company, a corporation organized and existing under the laws of the state of Iowa, who had performed labor in the company's mine in Baker county, Or., filed lien claims against it with the county clerk of said county within 60 days after they ceased to perform such labor, amounting in the aggregate to $1,589.54, and thereupon assigned the liens to plaintiff, who on May 13, 1897, commenced a suit to foreclose the same by filing the complaint with the clerk of the court, and delivering the summons to the sheriff of said county, who returned it, as to the corporation, non est inventus; whereupon plaintiff, in pursuance of an order of the circuit court for said county, attempted to serve a summons upon it by publication. That said corporation appearing specially for that purpose, moved the court to annul the attempted service, because of the insufficiency of the affidavit for the order directing such service by publication; and such motion, having been taken under advisement July 15, 1897, was on September 7th of that year sustained, and the service annulled. That an alias summons was thereafter issued, and served by publication, whereupon the corporation answered the complaint, denying the material allegations thereof, and averring that the suit was not commenced within six months from the time said claims were filed. The reply, having denied the material allegations of the answer, averred that the corporation, by its agent, J.M Tigner, had operated the mine until January 13, 1897, when the development thereof ceased, and said agent went to Iowa and never returned to Oregon. That Tigner was the only representative of the corporation who had ever been within the state of Oregon, and that six months had not elapsed since either of the several causes of suit arose with an officer or agent of the corporation within the state upon whom process could be served. A demurrer to the new matter contained in the reply having been sustained, the suit was dismissed, and plaintiff appeals.

W.F Butcher, for appellant.

Chas. H. Carter, for respondent.

MOORE J. (after stating the facts).

It is contended by plaintiff's counsel that the limitation as to the time in which a suit may be commenced to foreclose a miner's lien, as prescribed in the act creating the right, should be construed as pari materia with the general statutory limitation as to the time of commencing actions, and that, if the act be given such interpretation, neither of the several causes of suit was barred when the corporation filed its answer. The act in question provides that the liens thereby created shall not bind the mine upon which the labor is performed for a longer period than six months after the claims therefor shall have been filed, unless within that time a suit be brought for their foreclosure. Laws 1891, p. 76; 2 Hill's Ann.Laws Or. p. 1906. The statute prescribing a general limitation as to the time of commencing actions provides: "If, when the cause of action shall accrue against any person who shall be out of the state or concealed therein, such action may be commenced within the terms herein respectively limited, after the return of such person into the state, or the time of his concealment; and if, after such cause of action shall have accrued, such person shall depart from and reside out of this state, or conceal himself, the time of his absence or concealment shall not be deemed or taken as any part of the time limited for the commencement of such action." 1 Hill's Ann.Laws Or. § 16.

In Larson v. Aultman & Taylor Co., 86 Wis. 281, 56 N.W 915, it was held that a foreign corporation is a "person out of the state," within the meaning of the statute of Wisconsin which provided that "if, when the cause of action shall accrue against any person, he shall be out of this state, such action may be commenced within the terms herein respectively limited, after such person shall return or remove to this state." Mr. Justice Cassoday, in rendering the decision of the court, says: "It is conceded that the defendant is a corporation created and organized under the laws of Ohio. It exists only in contemplation of, and by force of, the law of that state. Since such law has, of itself, no extraterritorial force, the corporation cannot migrate to another state, but must dwell in the state of its creation." To the effect that a foreign corporation is a "person out of the state," see, also, Insurance Co. v. Fricke (Wis.) 74 N.W. 372; Dry-Goods Co. v. Cornell, 4 Okl. 412, 46 P. 860. In Olcott v. Railraod Co., 20 N.Y. 210, under a statute of New York identical with section 16, 1 Hill's Ann.Laws Or., it was held that a foreign corporation sued in that state could not plead the statute of limitations in bar of an action. And this rule has been followed in Nevada. Robinson v. Mining Co., 5 Nev. 44; State v. Central P. R. Co., 10 Nev. 47; Barstow v. Mining Co., 10 Nev. 386. The more modern rule, however, and the one most consonant with reason, is that a foreign corporation doing business within a state may plead the statute of limitations in bar of an action instituted therein, when it maintains an agent within such state upon whom service of process can be made for it. Huss v. Railroad Co., 66 Ala. 472; Lawrence v. Ballou, 50 Cal. 258; Pennsylvania Co. v. Sloan, 1 Ill.App. 364; Koons v. Railway Co., 23 Iowa, 493; Cobb v. Railway Co., 38 Iowa, 601; Winney v. Manufacturing Co. (Iowa) 50 N.W. 565; King v. Exploring Co., 4 Mont. 1, 1 P. 727. The reason for this latter rule undoubtedly is that a debtor out of the state cannot impute laches to his creditors, or those claiming to have rights of action against him, in not pursuing their remedies in a foreign jurisdiction; but, when this excuse is rendered unavailing by the debtor's coming into the state, the obligation upon their part to use the required diligence attaches; and a foreign corporation "returns" to the state, within the meaning of statutes of limitation, when it establishes an agent therein upon whom process can be served as its representative. But, whatever the rule for the interpretation of the general statute of limitation may be, it can have no application to the case at bar; for the exceptions to the operation of that statute cannot be invoked in aid of a suit to foreclose a mechanic's lien, which must be commenced within the time prescribed in the act creating the right,...