Dodgem Corporation v. D. D. Murphy Shows, Inc.
| Decision Date | 23 December 1932 |
| Docket Number | 14,586 |
| Citation | 183 N.E. 699,96 Ind.App. 325 |
| Parties | DODGEM CORPORATION v. D. D. MURPHY SHOWS, INC |
| Court | Indiana Appellate Court |
Rehearing denied April 6, 1933, Reported at: 96 Ind.App. 325 at 341.
From Delaware Circuit Court; Robert F. Murray, Judge.
Action by the Dodgem Corporation against the D. D. Murphy Shows Incorporated. From a judgment abating the action, plaintiff appealed.
Reversed.
White & Haymond and Bracken, Gray & De Fur, for appellant.
R. W Lennington & Sons, amicus curiae, in support of appellee.
The appellant is a Massachusetts corporation. The appellee is a Missouri corporation. On January 10, 1927, in the city of St. Louis, Missouri, the appellee executed and delivered to the appellant, its six certain promissory notes, each for the sum of $ 500.00 with interest from February 1, 1928, at six per cent per annum. The last one of said notes was due and payable October 1, 1929. By their terms all of the notes were payable at the Lawrence Trust Company, Lawrence, Massachusetts. The appellee was engaged in the show business, and traveled from city to city, and state to state, for the purpose of giving exhibitions, usually remaining in each place for a period of several days, before moving to another location. On August 6, 1931, the appellee's shows were located and being operated in the city of Muncie, Delaware County, Indiana, and it had certain articles of tangible personal property belonging to it in said city and county, which were being used by appellee in the operation of said shows. On that date the appellant filed its complaint in the Delaware Superior Court against the appellee for the collection of all of said notes. The clerk issued a summons to the Sheriff of Delaware County who returned the same, endorsed as follows:
At the same time appellant filed an affidavit in attachment alleging as cause therefor, that the defendant (appellee) was a foreign corporation; appellant accompanied this affidavit with the usual bond as required by Sec. 988, Burns 1926. On August 7, 1931, the clerk issued a writ of attachment to the sheriff of Delaware County, who executed it on the same day by taking into his possession certain personal property of appellee, which he caused to be inventoried and appraised and made a due return of the writ as required by Sec. 992, Burns 1926.
The record shows without any controversy that neither the appellant or appellee had ever at any time made any attempt to comply with or sought to be admitted to do business as a foreign corporation with, the State of Indiana as required by Secs. 4856.21-4856.34, Burns Supp. 1929, Acts 1929, p. 725.
Appellee appeared specially to the action and filed what it designated as a motion to dismiss and abate the action in which it alleged facts substantially as above set out, except it did not set out the return of the sheriff to the summons or question its sufficiency in any way. In addition to the facts as above summarized the appellee did allege that it did not on August 6, 1931, nor had it since or prior to January 10, 1928, had any property located in the State of Indiana; that at the time of the filing of the action no notice of its pendency was ever given to appellee by publication as required by law and no notice of its pendency was ever published in any newspaper in Delaware County, or in the State of Indiana; that no summons or notice of the pendency of the action had ever been served upon the appellee as required by law. The pleading was verified. To this pleading the appellant filed a reply in general denial.
The issues thus formed were submitted to the court for trial without a jury. Finding was made and judgment entered abating the action. The appellant field a motion for a new trial. The causes therefore, which it is necessary to consider, being: (1) the decision of the court is contrary to law; (2) the decision of the court is not sustained by sufficient evidence. This motion was overruled and this action of the court is assigned as error.
The appellee has failed to file a brief. This may be considered as a confession of error, and the court may in its sound discretion determine the questions presented by appellant's brief, or it may reverse the judgment without prejudice to either party, without considering the appeal on its merits, providing the appellant's brief makes an apparent or prima facie showing of reversible error. Bryant v. School Town, etc. (1930), 202 Ind. 254, 171 N.E. 378, 173 N.E. 268. It is therefore incumbent upon this court to determine whether the appellant has presented prima facie reversible error in its brief.
The question submitted to the court for consideration may be stated as follows: Can one foreign corporation which has not complied with the statutes permitting it to do business within this state sue another foreign corporation within this state, when it has not complied with the statutes permitting it to do business in the state, upon promissory notes executed in one foreign state, to be paid in another foreign state, and if such foreign defendant corporation has tangible property in this state can it be attached and subjected to satisfaction of such foreign plaintiff corporation's claim? After diligent investigation we do not find that this identical question has ever before been presented to either our Supreme or Appellate Court for determination.
The cases in which the courts have discussed questions somewhat similar to those here presented are numerous, but the conclusions arrived at have not been harmonious. The conflict in the authorities is undoubtedly due in no small degree to local statutes, and for that reason they do not lend much dependable assistance. However there are certain general principles of law involved in a determination of the questions comprehended within the record in this case upon which a great majority of the courts agree, and except as modified or controlled by statutes of the different states lend some aid in discovering a proper answer to the query.
A plea in abatement is a dilatory plea; it is construed with much greater strictness than an ordinary plea in bar; no intendments are taken in its favor. It must contain the utmost fullness and particularity in every respect, also the highest accuracy and precision, leaving nothing to be supplied by intendment on the one hand and no assumed special answer unobviated on the other hand. It is regarded with disfavor as having the effect of excluding the truth. Needham v. Wright (1895), 140 Ind. 190, 39 N.E. 510; Moore v. Morris (1895), 142 Ind. 354, 41 N.E. 796; Kunkle v. Coleman (1910), 174 Ind. 315, 92 N.E. 61; Rush v. Foos Mfg. Co. (1898), 20 Ind.App. 515, 51 N.E. 143; Callahan Co. v. Wall, etc., Co. (1909), 44 Ind.App. 372, 89 N.E. 418; National, etc., Co. v. Wolfe (1914), 59 Ind.App. 418, 106 N.E. 390.
This was a transitory action. 7 Words & Phrases, (3rd. Series) p. 592; 22 Ency. Pl. & Pr, p. 780; 1 C. J. § 23, p. 933. The Delaware Superior Court has jurisdiction of actions and proceedings of the character here involved. Sec. 1430, Burns 1926. This is not questioned by the issues tendered.
It has been held by this court that under the provisions of Sec. 314, Burns 1894 (§ 329, Burns 1926) one non-resident natural person may bring an action in the courts of this state for the value of work and labor alleged to be due him against another non-resident natural person, in any county where he may be found. The courts of this state being open to residents and non-residents, and the fact that the plaintiff was a non-resident of the state did not deprive him of the right to bring the action. Levi v. Kaufman (1895), 12 Ind.App. 347, 39 N.E. 1045. In the case of McClerkin v. Sutton (1868), 29 Ind. 407, suit was brought upon a promissory note, accompanied with an attachment and garnishee proceeding. Both the plaintiff and defendant were residents of Franklin County, Tennessee, the defendant filed a plea in abatement alleging that fact and the further fact that he had ample property in that county and state to answer all demands of the plaintiff. A demurrer to the answer was sustained, it being held insufficient to abate the action. The court in its opinion saying, "This suit was commenced by attachment and garnishee process, and our statute does not require that the plaintiff, in such proceedings, should be a resident of this State."
In the case of Catlin v. Wilcox, etc., Co. (1890) 123 Ind. 477, 24 N.E. 250, 8 L. R. A. 62, 18 Am. St. Rep. 338, Clapp and Davis, partners, doing business in Chicago, were indebted to the appellee. They became insolvent and appellant, pursuant to a decree of an Illinois court, was appointed as receiver of their partnership affairs. This occurred on or prior to April 14, 1887. Bagley & Oberreich, partners, doing business in LaPorte, Indiana, were indebted to Clapp and Davis. In the month of June, 1887, the appellee instituted a suit in attachment in the LaPorte Circuit Court against Clapp and Davis and summoned Bagley and Oberreich to answer as garnishees. On behalf of appellant it was contended that the principles of comity which control in aid of a receiver of a foreign court, seeking to obtain possession of a fund, should only be suspended in favor of domestic creditors, and that...
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