C. Callahan Co. v. Wall Rice Milling Co.

• Decision Date: 14 October 1909
• Docket Number: No. 6,515.,6,515.
• Citation: 44 Ind.App. 372,89 N.E. 418
• Parties: C. CALLAHAN CO. v. WALL RICE MILLING CO., Ltd.
• Court: Indiana Appellate Court

44 Ind.App. 372

89 N.E. 418

C. CALLAHAN CO.

v.WALL RICE MILLING CO., Ltd.

No. 6,515.

Appellate Court of Indiana, Division No. 1.

Oct. 14, 1909.

Appeal from Superior Court, Tippecanoe County; H. H. Vinton, Judge.

Action by the C. Callahan Company against the Wall Rice Milling Company, Limited. From a judgment against plaintiff rendered after overruling a demurrer to the plea in abatement, it appeals. Reversed.

Stuart, Hammond & Simms, for appellant. A. O. Behm, for appellee.

HADLEY, C. J.

This is an action brought by appellant against appellee, a foreign corporation, to recover on breach of contract. Service was had on one Geyer; he, as the return of the sheriff states, “being the agent of said defendant (appellee) and said defendant (appellee) having no officer and no other agent in said county.” To the action appellee filed an answer in abatement, to which appellant demurred for want of facts, which demurrer was overruled, and, appellant refusing to plead further, judgment was rendered against it. The ruling of the court on this demurrer is the only error assigned.

The answer seeks to abate the action for the reason that appellee had no agent in the county at the time the action was brought; that Geyer, who was served with summons, was not its agent and never had been its agent. A plea in abatement, being a dilatory plea, is construed with much greater strictness than an ordinary plea in bar, and no intendment can be taken in its favor. Works Pr. & Pl. (2d Ed.) § 576; Rush et al. v. Foos Mfg. Co., 20 Ind. App. 515, 51 N. E. 143. And such pleas must contain the utmost fullness and particularity in statement in every respect, as well as the highest attainable accuracy and precision, leaving, on the one hand, nothing to be supplied by intendment, and, on the other, no supposable special answer unobviated. Rush et al. v. Foos Mfg. Co., supra; Gould's Pl. § 57; Capwell v. Sipe, 17 R. I. 475, 23 Atl. 14, 33 Am. St. Rep. 890;Mandel v. Peet, 18 Ark. 236;Tweed v. Libbey, 37 Me. 49;Needham v. Wright, 140 Ind. 190, 39 N. E. 510;Moore v. Morris, 142 Ind. 354, 41 N. E. 796. Suits may be instituted in this state against foreign corporations under two conditions: First, when such corporation has an office or agency in this state for the transaction of business, suit may be brought in the county where such office or agency is located and an action growing out of or connected with the business of such office or agency (Burns' Ann. St. 1908, § 311; Debs v. Dalton et al., 7 Ind. App. 84, 34 N. E. 236; Rush v. Foos Mfg. Co., supra); second, when such corporation has property, money, credits, or effects belonging to or due such corporation in the county where suit is brought (Burns' Ann. St. 1908, § 316). The plea negatives all the conditions in section 311, supra, except it does not aver that it had no office in the county where and when the suit was brought, but does not negative any of the conditions of section 316, supra. Neither does the plea in abatement deny that appellee had no officer within the county upon whom service might be had; nor does it aver that Geyer was not such an officer; nor that any other summons had not been served on any other proper person. Since the plea seeks to abate the action for the reason that service has been had upon one not an agent of the company, to succeed, it must exclude every possibility that proper service might not have been had in the action. Shampeau v. Connecticut, etc., Co. (C. C.) 37 Fed. 771; Moore et al. v. Morris, supra; Burchard v. Record (Tex.) 17 S. W. 241;Pearson v. French, 9 Vt. 349;Morse v. Nash Trust, 30 Vt. 76; Tweed v. Libbey, supra; Adams v. Hodsdon, 33 Me. 225. In Tweed v. Libbey, supra, the court say: “The degree of certainty required in a plea in abatement is such as to exclude all such supposable matter...