Cowikee Mills v. Georgia-Alabama Power Co.

• Decision Date: 19 May 1927
• Docket Number: 4 Div. 323
• Citation: 216 Ala. 221,113 So. 4
• Parties: COWIKEE MILLS v. GEORGIA-ALABAMA POWER CO.
• Court: Alabama Supreme Court

113 So. 4

216 Ala. 221

COWIKEE MILLS v. GEORGIA-ALABAMA POWER CO.

4 Div. 323

Supreme Court of Alabama

May 19, 1927

Appeal from Circuit Court, Barbour County; J.S. Williams, Judge.

Action by the Cowikee Mills against the Georgia-Alabama Power Company. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Chauncey Sparks, of Eufaula, for appellant.

W.H Merrill, of Eufaula, for appellee.

GARDNER J.

Suit by appellant against appellee to recover damages for breach of a contract.

Defendant's pleas in abatement being sustained, plaintiff suffered a nonsuit and prosecutes this appeal for a review of the ruling on the abatement pleas.

Defendant is a foreign corporation, and had been duly qualified to do business in this state, and complying with the provisions of section 7209 of the Code of 1923, designating an agent and place of business in this state. The defendant was so engaged in business in this state at the time plaintiff's cause of action arose. Some considerable time, however, prior to the commencement of this suit, defendant had disposed of all its holdings here located, had ceased to do any business in the state by agent or otherwise, and had, in March, 1926 formally filed in the office of the secretary of state its declaration of withdrawal from and discontinuance of operations in this state.

While the first service of summons was had on the former agent of defendant, yet we gather from brief of counsel for appellant that the service here insisted upon as effective is that had upon the secretary of state, and much reliance is placed upon that portion of section 9426 of the Code of 1923, providing for service upon the secretary of state when the agent designated by a foreign corporation "shall die, resign remove from the state, or his authority shall cease from any cause." But these provisions must be viewed in the light of the Fourteenth Amendment to the Constitution of the United States, known as the due process clause of the Constitution as interpreted by the federal Supreme Court. So viewed, we are of the opinion the language must be held applicable only to those foreign corporations still engaged in business in this state, and subject to the jurisdiction of our courts. Section 10471, Code of 1923, also cited by appellant, is a venue statute only, and is without material bearing upon the question here presented. Nor do we find sections 7208 and 9427 of the Code of 1923 (also cited by appellant) here applicable.

In Long v. Clark, 201 Ala. 454, 78 So. 832, is found the following excerpt from Sweeney v. Tritsch, 151 Ala. 242, 44 So. 184, here pertinent:

"It has been settled, since the leading decision of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, was pronounced, that a personal judgment or decree rendered in a cause against a nonresident, upon whom no personal service therein was had, is void, and, of course, unenforceable in any manner. That doctrine has been several times affirmed by this court."

And in Riverside Mills v. Menefee, 237 U.S. 189, 35 S.Ct. 579, 59 L.Ed. 910, the United States Supreme Court declared that the principle enunciated in Pennoyer v. Neff was equally applicable to corporations saying:

"That to condemn without a hearing is repugnant to the due process clause of the Fourteenth Amendment needs nothing but statement. Equally well settled is it that the courts of one state cannot without a violation of the due process clause, extend their authority beyond their jurisdiction so as to condemn the resident of another state when neither his person nor his property is within the jurisdiction of the court rendering the judgment, since that doctrine was long ago established by the decision in Pennoyer v. Neff, 95 U.S. 714 , and has been without deviation upheld by a long line of cases, a few of the leading ones being cited in the margin. And that a corporation no more than an individual is subject to be condemned without a hearing or may be subjected to judicial power in violation of the fundamental principles of due process as recognized in Pennoyer v. Neff, is also established by the cases referred to and many others."

In the comparatively recent case of Philadelphia & Reading Ry. Co. v. McKibbin, 243 U.S. 264, 37 S.Ct. 280, 61 L.Ed. 710, the United States Supreme Court said:

"A foreign corporation is amenable to process to enforce a personal liability, in the absence of consent, only if it is doing business within the state in such manner and to such extent as to warrant the inference that it is present there. And even if it is doing business within the state the process will be valid only if served upon some authorized agent. *** Whether the corporation was doing business within the state and whether the person served was an authorized agent are questions vital to the jurisdiction of the court."

See, also, to like effect, Rosenberg Bros. v. Curtis Brown, 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372; Chipman, Limited, v. Thos. B. Jeffrey Co., 251 U.S. 373, 40 S.Ct. 172, 64 L.Ed. 314; People's Tobacco Co. v. Am. Tobacco Co., 246 U.S. 79, 38 S.Ct. 233, 62 L.Ed. 587, Ann.Cas.1918C, 537.

This latter authority is very much in point here, and the court, in discussing the Louisiana statute as construed by that court in Gouner v. Mo. Valley, etc., Co., 123 La. 964, 49 So. 657--similar to our own statute--made the following observation:

"As to the attempted service of process upon the secretary of state of Louisiana under the Louisiana act of 1904 (Laws 1904, Act No. 54, p. 133), as amended 1908 (Laws 1908, Act No. 284, p. 423), we understand the act, as construed by the state Supreme Court, is not applicable to foreign corporations not present within the state and doing business therein at

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