Cudahy Packing Co. v. Smith

• Decision Date: 12 May 1941
• Docket Number: 34574.
• Citation: 191 Miss. 31,2 So.2d 347
• Court: Mississippi Supreme Court
• Parties: CUDAHY PACKING CO. v. SMITH.

2 So.2d 347

191 Miss. 31

CUDAHY PACKING CO. v. SMITH.

No. 34574.

Supreme Court of Mississippi

May 12, 1941

A M. Pepper, of Lexington, and Welch & Cooper, of Laurel for appellant.

Homer Currie, of Raleigh, and O. B. Triplett, Jr., of Forest, for appellee.

GRIFFITH Justice.

Appellee as plaintiff instituted, on July 17, 1940, in the Circuit Court of Smith County, an action against appellant, the defendant therein, for a breach of an implied warranty in respect to an article of canned sausage. The declaration charged that the corporation which packed or canned the sausage was the Cudahy Packing Company, a Maine corporation and this is the particular corporation which was made defendant; but it further charged that the defendant corporation was, at the times relevant to the occurrences charged in the declaration, "doing business in Mississippi through its corporate agent Cudahy Packing Company of Louisiana, Ltd., a non-resident corporation domiciled at New Orleans, Louisiana, but qualified to do business in the State of Mississippi, and in the manner required by statute having designated A. M. Pepper, a resident of Lexington, Holmes County, Mississippi, as its resident agent upon whom all process of this Court may be served."

Upon the filing of the declaration, a summons was issued reading as follows:

"To the Sheriff of Holmes County-Greeting:

We command you hereby that you summon The Cudahy Packing Company by serving process upon A. M. Pepper as process agent for Cudahy Packing Company of Louisiana Ltd., alleged by the plaintiff to be a corporate agent of the Cudahy Packing Company, a Maine Corporation, which is thus doing business in the State of Mississippi, Defendant, if to be found in your County, so that it be before the Circuit Court to be holden in and for Smith County at the Courthouse thereof, in the Town of Raleigh, said County and State, on the Fourth Monday of October, 1940, to answer the declaration of Walter Smith Plaintiff against the said defendant, now on file in the Clerk's office of said Court, and have then and there this summons."

The Sheriff of Holmes County returned the summons to the court in Smith County with the following endorsement: "I have this day executed the within writ by delivering a true copy thereof to A. M. Pepper, authorized agent for process of Cudahy Packing Company of Louisiana, Ltd., an alleged corporate agent of The Cudahy Packing Company, a Maine Corporation, doing business in the State of Mississippi."

The clerk made and filed in the papers in the case the following certificate: "I, E. F. Shanks, Jr., Circuit Clerk of Smith County, Mississippi, do hereby certify that on July 20, 1940, I mailed a copy of the summons of the defendant issued in this cause, to the home office of the defendant corporation by registered letter, addressed: 'The Cudahy Packing Company, Chicago, Illinois,' this being the name of the home office of said defendant; and I have filed in this cause the receipt of the postmaster for said registered letter and also the return receipt of said letter executed by the defendant on July 24, 1940, signed 'The Cudahy Packing Company by S. H. Bogers."'

It will be observed that the clerk certified that the return receipt was executed by the defendant, but the return receipt itself is in the record and that receipt is as follows:

"Received from the Postmaster the Registered or Insured Article, the original number of which appears on the face of this card.

(Signed) Cudahy Packing Company,

H. Bogers"

On the 3rd day of October, 1940, a few days before the coming on of the court term in Smith County, A. M. Pepper filed in the case the following paper, verified by oath, entitled "Motion to Quash Process":

"Now comes A. M. Pepper, upon whom process has been attempted to be served as alleged resident agent of The Cudahy Packing Company, a Maine Corporation, and moves the court to quash the summons and the return thereon for the following reasons:

First-Because the said A. M. Pepper is not the resident agent of The Cudahy Packing Company, a Maine Corporation, a non-resident corporation, the defendant in the above styled cause, therefore said attempted service of said process on him for said reason is void.

Second-Because The Cudahy Packing Company of Louisiana, Limited, a nonresident corporation, is not the corporate agent of The Cudahy Packing Company, a Maine Corporation, therefore the attempted service of process on A. M. Pepper as the alleged corporate agent for the service of process on The Cudahy Packing Company of Louisiana, Limited, as alleged corporate agent of the said Cudahy Packing Company, a Maine Corporation, defendant, is void and of no effect.

Third-The said A. M. Pepper appearing specially and personally in this cause for himself only and for jurisdictional purposes only.

And that no further answer be required or made in this cause."

This motion provoked the taking of some testimony which, so far as is material to the particular point that we shall first hereinafter consider, was to the effect that there are five or six corporations organized and existing under the laws of different states, all named Cudahy Packing Company, and that all these corporations, including the Louisiana corporation, have their general business offices in the City of Chicago, and that the principal stockholders in each of them live in that city. Moreover, that all these corporations have their general business offices in the same building in Chicago, but that each has a different set-up for the handling therein of the details of their respective corporate businesses, although it may be said that there is enough evidence to show that the same attorneys serve all these Cudahy corporations.

There is no statement either in the declaration or in any of the testimony as...