Emerson v. McCormick Harvester Co.

• Citation: 51 Mich. 5,16 N.W. 182
• Court: Michigan Supreme Court
• Decision Date: 13 June 1883
• Parties: EMERSON v. McCORMICK HARVESTER CO.

16 N.W. 182

51 Mich. 5

EMERSON v. McCORMICK HARVESTER CO.

Supreme Court of Michigan

June 13, 1883

Writ of error will lie where a common-law action has been dismissed for want of jurisdiction.

Foreign corporations may sue and be sued in this state.

The failure to send the notice of suit by mail, required by the statute of 1881, to the home office of a foreign corporation that is sued, cannot affect the jurisdiction of the court in which the suit is brought; and when service of the writ is made upon the secretary, whose principal business was at the home office and who would have received such notice of suit the omission to send such notice is an irregularity only, and will not entitle the defendant to a dismissal of the suit.

Error to Kalamazoo.

H.F Severens, for plaintiffs and appellants.

Howard & Roos, for defendant.

SHERWOOD J.

The parties to this suit are two corporations organized under the laws of the state of Illinois, and at the time of the commencement of this suit both were engaged in the business of introducing and mending agricultural implements in Kalamazoo, in this state, each having a business office at that place, and a depository of such implements; that while the parties were thus engaged in business the facts and circumstances transpired out of which the alleged cause of action in the case arose, and all occurred in this state. The action is trover for the conversion by defendant of $500 worth of the plaintiff's property at Kalamazoo. The writ was served personally on the secretary of the defendant company, at Kalamazoo, and after the plaintiff had filed his declaration. The defendant appeared specially, and moved to dismiss the plaintiff's suit and quash the writ on the grounds--First, because the court had no jurisdiction of the parties, both being foreign corporations; second because there was no sufficient service of the process third, because the plaintiff did not, within 30 days after the commencement of the suit, send notice of the suit by mail, to the defendant, at its home office. The circuit judge sustained the motion, and gave judgment, dismissing the suit, and for $10 costs, against plaintiff, who now brings error.

Defendant's counsel insist error is not the proper remedy. This is a mistake. A final disposition was made of the plaintiffs' case at the circuit, in a suit according to the course of the common law. Graham, Pr. (2d Ed.) 932, 933; Jewell v Lamareaux, 30 Mich. 155; Stall v. Diamond, 37 Mich. 429. The grounds of dismissal are a part of the record in the case, and must be read in connection with the orders of the circuit court dismissing the case. Our statute expressly authorizes domestic corporations to sue and be sued. 1 Comp.Laws, p. 1148, � 1. Foreign corporations may do business and bring suits in this state. 2 Comp.Laws, p. 1837, � 1. And since the statute of 1881, whatever may have been the situation before, suits may be brought against them. The statute of 1881 is as follows: "Suits may be commenced at law or in equity in the circuit court for any county of this state where the plaintiff resides, or service of process may be had, and in cases where the plaintiff is a non-resident, in any county of the state, against any corporation not organized under the laws of this state, in all cases where the cause of action accrues within the state of Michigan, by service of a summons, declaration, or chancery subpoena within the state of Michigan, upon any officers or agents of the corporation, or upon the conductor of any railroad train, or upon the master of any vessel belonging...