Columbia Star Milling Co. v. Brand

• Decision Date: 22 October 1917
• Citation: 115 Miss. 625,76 So. 557
• Court: Mississippi Supreme Court
• Parties: COLUMBIA STAR MILLING CO. v. BRAND

76 So. 557

115 Miss. 625

COLUMBIA STAR MILLING CO. v. BRAND

Supreme Court of Mississippi

October 22, 1917

October 1917

Division A

APPEAL from the chancery court of Clay county, Hon. A. J. McIntyre Chancellor.

Suit by John Brand against the Columbia Star Milling Company and others. From a decree pro confesso and final judgment against the named defendant, it appeals.

The facts are fully stated in the opinion of the court.

Decree reversed, and cause remanded.

Gates T. Ivy, for appellant.

There are two points of controversy arising out of this appeal namely: First: Did the lower court have jurisdiction of the person of appellant by proper process? Second: Did appellant by any act of its own, or by duly authorized attorney, enter a voluntary appearance to the merits of the controversy?

Now adverting to the first topical question we submit: That appellant was never properly served with process in this cause and the court had no jurisdiction of its person and therefore no right to enter a decree in personam, or otherwise! and it may be here stated that the decree rendered was one in personam.

This court below found in its final decree, that appellant, had been properly made defendant under section 920 of the Mississippi Code 1906, to which reference is here made.

We urge that this was error in the light of the record in this cause. The provisions of the law referred to as applying to non-resident corporations as defined under the preceding section 919 requires that process shall be served upon any agent of the corporation found within the county where suit is brought. It is further provided under section 919, in defining the cases in which such non-resident corporations may be sued in this state, that any corporation having any transaction with persons or having any transactions concerning property situated in this state, through any agency whatever acting for it within this state, shall be held to be doing business here within the meaning of this section. Under section 920 it is provided that the officer serving process shall "state the facts, upon whom issued," etc., in his return; but in order that defendant corporation may also have effectual notice, it shall be the duty of the clerk to immediately mail a copy of the process to the home office of the corporation by registered letter, etc.

We submit that this provision of law was not complied with. Claughton v. Black, et al., 24 Miss. 185.

For a further authority urging the strictest compliance with the requirements of statutory laws relative to the service of process, see the case of Bustamente v. Buscher, Shultz &amp Company, 43 Miss. 172, especially the last few paragraphs in the conclusion of the opinion.

Inviting the court's attention now to the second topical question hereinbefore in this brief announced, we submit: that the court was wholly without warrant in finding that the appellant voluntarily appeared, notwithstanding the failure of process.

It is obvious that if the defendant, Schoening, and The Columbia Star Milling Company had been one and the same person, jurisdiction was acquired by the voluntary appearance of Schoening and for the purpose of the injunction by process on the trustee, or his appearance, but it is likewise obvious that if Schoening and appellant were different beings in law, then the appellant was improperly joined in this suit and a court of chancery should not have taken jurisdiction when the bill was amended, because on its face it appeared that the two defendants, Schoening and appellant, were different persons in law, because an individual and a corporation cannot be one entity, and because the bill sought an injunction against Schoening and a decree in personam against Columbia Star Milling Company.

All pleadings in the circuit courts of this state are required to be in writing. All pleadings must be filed by the party or his attorney, section 760. All actions must be commenced in the manner provided by section 728, the cause of action stated and filed in court, and therefore must be in writing.

Moreover all provisions pertaining to the declaration and commencement apply to pleas or appearances entered by the defendant, see section 739. It is the spirit of our law covering the subject of pleadings and practice that the complainant, or plaintiff, and the defendant, or respondent must appear before the courts of the land in a manner accompanied with such dignity or solemnity as that permanent proof or record of the fact may be made. It is therefore required that all pleadings shall be in writing; all motions must be in writing; all demands made upon the court relative to the quashing of writs, amending of pleas, leave to file pleadings and all matters touching the subject of pleading in court must be in writing.

This court so far back as 1860 in the case of Byrne Vance & Co. v. Jeffries, as reported in 38 Miss. 533, recites: "Appearance formerly was by actual presence in court, either in person or by attorney, and such appearance still exists in contemplation or fiction of law, but, in fact this appearance is now effected by making certain formal entries in the proper office of the court expressing his appearance."

The court had no right at the November term to enter a decree pro confesso against appellant, and counsel for Edward F. Schoening, who was himself financially interested in appellant institution, merely thought to show the court a possibility of error, and presented to the court the fact that Columbia Star Milling Company had not been served with process, and that a decree should not be entered against them, pro confesso, at the same time informing the court in open court that he had no employment from Columbia Star Milling Company; did not represent it; all of which is shown by the record in this cause above herein referred to.

It is not to be contemplated that parties who are without counsel, or over whom no jurisdiction had been acquired as provided by the laws of the country, are to be held and bound by any act of friendliness to the court and to the party on the part of an attorney employed and representing another party defendant in the cause, unless such attorney is acting with the knowledge or consent or under the authority of such party; certainly the courts of the land are not factories out of which may be turned agents and instrumentalities to be enforced upon others. Agencies may be created in only two ways: first, by expressed assent of delegation; second, by implication, or in other words, agencies by estoppel. Certainly counsel for Schoening was not an agent by expressed authorization; as surely he was not an agent by estoppel, because no act of appellant, no knowledge, no assent, no conduct whatever furnished facts upon which estoppel might be predicated.

It is recognized that the course which has been made necessary by the action of the court below in assuming jurisdiction without warrant will operate as an appearance to the cause on reversal, when the case will be remanded for trial; appellant having appeared in the appeal, has entered an appearance to the jurisdiction of the court, but this right should be, and will be, granted the appellant to defend against an action brought in this state against it, and to present to a court of law its defense to the complaint.

W. G. Roberds, for appellee.

It is stated that no copy of the publication was mailed to appellant, whereas a copy of the general docket made a part of the record by agreement, shows that publication was mailed by the clerk to appellant on May 29, 1915.

Cases cited by appellant. Appellant cited three cases: Claughton v. Black, et al., 24 Miss. 198; Vance & Co. v. Jeffries, 38 Miss. 540; Bustamente v. Bescher, et al., 43 Miss. 173.

The first case was in the circuit court and there was no claim of appearance. The second case is interesting and gives a brief history of the manner formerly of appearing and the manner at the time this decision was rendered, April term, 1860. The court said: "Appearance formerly was by actual presence in court, either in person or by attorney, and such appearance still exists in contemplation or fiction of law. But, in fact, this appearance is now effected by making certain formal entries in the proper office of the court, expressing his appearance. Bouvier's Law Dict., title Appearance.

"As the appearance anciently was an actual one, so the pleading was an oral altercation, in open court, in the presence of the judges. During this altercation a minute in writing was made by the proper officer, comprising a short notice of the nature of the action, the time of the appearance of the parties in court, and the acts of the court itself during the pleading; and this was called the record.

"The appearance of the parties is no longer by actual presence in court. It is effected on the part of the defendant by making certain formal entry in the proper office of the court, expressing his appearance. Stevens on Pleading, 22-26."

But the court in that case also said:

"If, in the case of Hemphill v. Hemphill, it was intended to say that appearance to the action could only be effected by plea, or in proper person without plea in open court, and making the necessary waiver and consent of judgment; and that it could not be done out of term time by entry on the complaint of appearance to the action (in the proper office, and before the clerk of the court) we are not willing to sanction the doctrine of that case to that extent."

We submit it has never been the rule and is not the rule now that a party cannot make appearance in a case except by signature to some pleading; if he appears in open court and contests the right to make an order or take a decree pro confesso makes an "extended and...