Ellingson v. Northwestern Jobbers Credit Bureau
| Decision Date | 31 October 1929 |
| Citation | 227 N.W. 360,58 N.D. 754 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Eddy County, Jansonius J. Defendant appeals from an order denying a motion to vacate the service of the summons.
Dismissed.
Manly & Manly (Todd, Fosnes & Green of counsel), for appellant.
To give the court jurisdiction to render a personal judgment against a foreign corporation it must appear (1) that the corporation was carrying on its business in the state where the process was served on its agent; (2) that the business was transacted or managed by some agent or officer appointed by or representing the corporation in such state; (3) the existence of some local law making such corporation amenable to suit there as a condition, express or implied, of doing business in the state. Kluver v. Middlewest Grain Co. 44 N.D 210, 173 N.W. 468.
S E. Ellsworth, for respondent.
"An order involves the merits of the action, or some part thereof, when and only when it determines the strict legal rights of the parties as contradistinguished from those mere questions of practice which every court regulates for itself, and from all matters which depend upon the discretion or favor of the court." Plano Mfg. Co. v. Kaufert (Minn.) 89 N.W. 1124.
. Bolton v. Donovan, 9 N.D. 575, 84 N.W. 357.
"The merits of an action do not relate to the moral and abstract rights of the case, without reference to the constitution of judicial tribunals, or their mode of investigating facts, or their well-established rules of practice." Oatman v. Bond, 15 Wis. 23; White v. Chicago, M. & St. P.R. Co. 5 Dak. 508, 41 N.W. 750.
"The right of appeal in all cases and from all courts, boards and tribunals is statutory, and does not exist in the absence of some legislative enactment creating it." Davison County v. Chicago, M. & St. P.R. Co. (S.D.) 127 N.W. 728.
"Interlocutory orders are not appealable unless made so by statute or by necessary implication from some statute." Patterson v. Ward, 6 N.D. 359, 71 N.W. 543.
"An order denying a motion to quash a summons is not appealable as a final order." Prussian Nat. Ins. Co. v. Northwest F. & M. Ins. Co. (Wash.) 53 P. 158.
"Where a foreign corporation moves to vacate a summons and the motion is denied the appeal will be dismissed -- order not final." Mitchell-Munsing Co. v. Ewing, 35 App. D.C. 527.
The defendant in this case appeared specially and moved that the service of the summons in the action be set aside. The motion was based upon the grounds that the defendant is a foreign corporation; that service of the summons in the action was made within the state of North Dakota on May 18, 1929, upon one C. E. Peterson; that said Peterson was not, at the time of such service, and never has been, a managing agent for the defendant; that said Peterson was not at the time such service was made upon him, or at any other time, acting as agent of, or doing business for, the defendant in the state of North Dakota; that the defendant did not at the time of such service have any property within the state of North Dakota and has never had any property within such state, and that said defendant did not, at the time of such service, maintain, and has never maintained, an office within the state. After a hearing, at which evidence was submitted by both parties, the trial court made an order denying the motion and the defendant has appealed.
The plaintiff moves this court to dismiss the appeal on the ground that the order is not appealable. In support of the motion plaintiff cites and relies upon the decision of this court in Security Nat. Bank v. Bothne, 56 N.D. 269, 217 N.W. 148. The defendant seeks to distinguish the instant case from the case cited; but further argues that if the rule announced in Security National Bank v. Bothne, supra, is applicable to and covers the order in this case, that then the question should be reconsidered and the former decision overruled.
Appellant concedes that the right to appeal from an interlocutory order is purely a statutory one (Stimson v. Stimson, 30 N.D. 78, 152 N.W. 132); but it asserts that the order in question here is appealable under subdivision 4, § 7841, Comp. Laws 1913, which provides that an appeal may be taken to the supreme court from an order of a district court "when it involves the merits of an action or some part thereof." In support of this contention appellant cites and relies upon the decision of the Supreme Court of Minnesota in Plano Mfg. Co. v. Kaufert, 86 Minn. 13, 89 N.W. 1124.
We have carefully considered the arguments advanced by appellant's counsel and are agreed that the order in question here falls squarely within the rule announced in Security Nat. Bank v. Bothne, supra. That case involved the question whether an appeal would lie from an order denying a motion to dismiss an action on the ground that substituted service of the summons was defective and hence the trial court without jurisdiction. In disposing of the question thus presented this court said:
Security Nat. Bank v. Bothne, supra.
We are unable to see any basis for distinguishing the case here from the case cited. The principle announced in that case is clearly applicable to and controlling here provided the rule there announced is adhered to.
But, as said, appellant contends that the order in question here is one which involves the merits of the action or some part thereof, within the purview of subdivision 4, § 7841, and hence is appealable. In a word, appellant contends that this court ought to repudiate the rule announced in Security Nat. Bank v. Bothne, supra, and over-rule that decision, and adopt the rule announced by the Minnesota court in Plano Mfg. Co. v. Kaufert, supra.
The meaning of the phrase "involves the merits of an action" in statutes relating to appeals is (as the decisions of the courts bear ample evidence) not always easy to ascertain. See St. John v. West, 4 How. Pr. (N.Y.) 329. Whether an order denying a motion to set aside the service of a summons involves the merits of the action or some part thereof within the purview of the statute so that an appeal will lie therefrom is one upon which the authorities are not agreed. The great weight of authority, however, is to the effect that such orders do not involve the merits of the action or some part thereof so as to be appealable under statutes authorizing appeals from such orders. 3 C.J. 479; 2 Standard Proc. p. 712. That the question is a debatable one may well be assumed from the fact that it has repeatedly arisen and been presented to the courts of last resort for determination. The question was presented to this court in Security National Bank v. Bothne, supra, and after due consideration this court ruled that the order was not an appealable one. While appellant has advanced forcible argument that the order in question ought to be appealable, we are not convinced that our decision in Security Nat. Bank v. Bothne, supra, misconstrued the statute and that the rule there announced ought to be departed from. It is desirable that questions of practice should be stable; and established rules should be adhered to, unless they are clearly erroneous. Horton v. Wright, B. & S. Co. 43 N.D. 114, 174 N.W. 67.
Appellant argues, however, that if the order is not appealable it will be deprived of all relief. This argument is based upon certain language in the decisions in Bolton v Donovan, 9 N.D. 575, 84 N.W. 357, and Northern P.R. Co. v. Barlow, 20 N.D. 197, 126 N.W. 233, Ann. Cas. 1912C, 763. In those cases reference is made to the following statutory provision (Comp. Laws 1913, § 7842): "Upon an appeal from a judgment the supreme court may review any intermediate order or determination of the court below which...
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