Campbell Printing Press & Manufacturing Co. v. Marder, Luse & Co.
| Decision Date | 07 January 1897 |
| Docket Number | 6937 |
| Parties | CAMPBELL PRINTING PRESS & MANUFACTURING COMPANY, APPELLEE, v. MARDER, LUSE & COMPANY, APPELLANT, ET AL |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Douglas county. Heard below before FERGUSON, J. Reversed.
REVERSED AND REMANDED.
Connell & Ives, for appellant:
A judgment may be impeached on the ground of a lack of jurisdiction over the defendant by any one whose interests are adversely affected thereby, be he stranger or party defendant to the suit. (Atkins v. Atkins, 9 Neb 191; Frazier v. Miles, 10 Neb. 113; Murphy v Lyons, 19 Neb. 691; Holliday v. Brown, 33 Neb 657; Wilson v. Shipman, 34 Neb. 573.)
To gain jurisdiction over a corporation the initial process must be served upon the identical persons and in the exact manner prescribed by the statute. (Fee v. Big Sand Iron Co. 13 O. St. 563; Miller v. Norfolk & W. R. Co. 41 F. 431; St. Louis, V. & T. H. R. Co. v. Dawson, 3 Ill.App. 120; Great Western M. Co. v. Woodmas of A. M. Co. 12 Colo. 47; Chambers v. King W. I. Bridge Mfg. Co. 16 Kan. 270; O'Brien v. Shaw's Flat & T. C. Co. 10 Cal. 343.)
Breckenridge & Breckenridge and L. F. Crofoot, contra:
There was service of valid process by which the court acquired jurisdiction. (Van Fleet, Collateral Attack, secs. 61, 62, 526; Black, Judgments, sec. 287; Freeman, Judgments [4th ed.], 130; Gandy v. Jolly, 35 Neb. 711; Schncitman v. Noble, 75 Iowa 120; Rotch v. Humboldt College, 56 N.W. [Iowa], 658.)
Defective service of process does not render void a judgment based thereon. (Isaacs v. Price, 2 Dillon [U.S.], 351; Hendrick v. Whittemore, 105 Mass. 27; Dutton v. Hobson, 7 Kan. 196; Campbell v. Hays, 41 Miss. 561; Christian v. O'Neal, 46 Miss. 669; Cole v. Butler, 43 Me. 401; Fahs v. Taylor, 10 O. 105; Ballinger v. Tarbell, 16 Iowa 492; Webster v. Daniel, 47 Ark. 131; Righter v. Thornton, 30 W. L. Bull [Pa.], 32; Jackson v. State, 104 Ind. 516; Essig v. Lower, 120 Ind. 239; Leonard v. Sparks, 22 S.W. [Mo.], 899; Janes v. Howell, 37 Neb. 320; Schoeder v. Wilcox, 39 Neb. 136.)
Appellant, who is a stranger to the record of the judgments, cannot attack them collaterally.
The facts are stated by the commissioner.
The Campbell Printing Press & Manufacturing Company, a New York corporation, brought this action against Marder, Luse & Co which seems to be an Illinois corporation, and the Omaha Type Foundry, a Nebraska corporation, alleging in its petition the recovery by the plaintiff against the Omaha Type Foundry of four judgments before a justice of the peace, and one in the county court of Douglas county; and that executions issued on these judgments had been returned unsatisfied; that such judgments were upon promissory notes made by strangers to the type foundry and by it indorsed to the plaintiff; that at the time of the indorsement of said notes the type foundry had in its possession and was the owner of a large amount of property; that Marder, Luse & Co. was then the owner of a large portion of the capital stock of the type foundry, and thereafter became the owner of the rest of the stock, and thereupon took possession and appropriated to its own use all the property of the type foundry. The prayer was for a disclosure of the property of the type foundry and that it be applied to the payment of plaintiff's judgments and for judgment against Marder, Luse & Co. Marder, Luse & Co. answered denying the material averments of the petition and alleging that the type foundry, in February, 1891, became unable to continue its business because of inability to pay debts, and sold its property to Marder, Luse & Co. the latter paying full consideration therefor. The court found for the plaintiff, taking the view that the plaintiff was entitled to share pro rata with other creditors in the property of the type foundry, and rendered judgment against Marder, Luse & Co. for that proportion of its judgments corresponding to the ratio which the value of the property bore to the total indebtedness of the company. From this decree Marder, Luse & Co. appeals.
The evidence, without contradiction, discloses that prior to December, 1890, the type foundry was doing business in Omaha with a capital stock of $ 25,000, $ 23,000 of which was owned by Marder, Luse & Co. $ 1,000 by Mr. Pickering, and $ 1,000 by H. P. Hallock. Mr. Hallock was vice president of the company, Mr. Marder, of Marder, Luse & Co. being its president. In December, 1890, Marder, Luse & Co. purchased the stock of Messrs. Pickering and Hallock, and thus became the sole owner of the stock of the type foundry. Mr. Dresser appeared then as the agent of Marder, Luse & Co. and took possession of the property of the type foundry. It appears quite clearly that he held no official position in the type foundry corporation and exercised no authority derived therefrom. The type foundry had about this time executed a bill of sale to Marder, Luse & Co. of all its property in payment of an indebtedness previously incurred. This bill of sale was authorized at a meeting of the stockholders of the type foundry, the minutes disclosing that Mr. Marder was alone present representing all the stock. From that time to-wit, early in February, 1891, the property was in the possession of Dresser as agent for Marder, Luse & Co. under the bill of sale. The judgments were all rendered in actions begun in 1892, long after the transactions referred to. To their introduction in evidence the defendant objected, on the ground of want of jurisdiction appearing on the face of the record, and also by extrinsic evidence. The court received the judgments and found in the decree that they were valid. We think they were shown beyond dispute to be void. It is unnecessary to consider some of the questions argued as to the validity of service upon certain officers of the corporation. Where the returns show by name the person upon whom service was made, it appears in each case to be Mr. Hallock or Mr. Dresser. At the time of service Mr. Hallock had no connection whatever with the corporation, and Mr. Dresser never had any connection therewith. One record discloses service by leaving a copy at the usual place of business of the corporation. But the action was before a justice of the peace. The general provision of the Code of Civil Procedure is (sec. 73), that a summons against a corporation may be served upon certain officers named, "or if none of the aforesaid officers can be found, by a copy left at the office or last usual place of business of such corporation." But section 912 of the Code is a special provision relating to service upon corporations in actions before justices of the peace, and such special provision prevails as against the general provision of section 73. By section 912 it is provided that a summons may be served upon certain officers, "or if none of the aforesaid officers can be found, by a copy left at the office or usual place of business of such corporation with the person having charge thereof. " Now, at the time this summons was served, the type foundry had no usual place of business, and no person was in charge thereof. The section governing the case differs from section 73 in requiring service at the usual place of business instead of last usual place of business, and in requiring a copy to be left with the person having charge thereof. While it was held in Johnson v. Jones, 2 Neb. 126, that the return of an officer cannot be impeached collaterally, it has since been several times distinctly held to the contrary. (Holliday v. Brown, 33 Neb. 657, 34 Neb. 232; Wilson v. Shipman, 34 Neb. 573, ...
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