Farnsworth v. Terre-Haute, Alton & St. Louis R.R. Co.

• Decision Date: 31 October 1859
• Citation: 29 Mo. 75
• Parties: FARNSWORTH, Respondent, v. TERRE-HAUTE, ALTON AND ST. LOUIS RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

29 Mo. 75

FARNSWORTH, Respondent,

v.TERRE-HAUTE, ALTON AND ST. LOUIS RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1859.

1. A foreign corporation, which has its chief office or place of business within this state, can not be sued by attachment upon the ground of nonresidence; the liability of such corporations to attachment under the attachment act of 1855 (R. C. 1855, p. 238) is limited to the cases where they have their chief office or place of business out of this state.

2. A foreign corporation having its chief office or place of business in this state may, it seems, be sued, as if resident here, by ordinary writ of summons.

Appeal from St. Louis Circuit Court.

The facts sufficiently appear in the opinion of the court.

N. D. & G. P. Strong, for appellant.

I. The defendant being alleged and proved to be a corporation could not be a nonresident within the meaning of the attachment law, for the reason that the statute has made separate and express provision for the case of corporations, foreign and domestic. There was no proof tendered that the chief office or place of business of the defendant was not within this state. There was no allegation in the affidavit, under the twenty-second section of the act concerning corporations, that the defendant was a foreign corporation having property in this state, nor was there any proof tendered of the existence of such property.

A. N. Crane, for respondent.

I. Before the enactment of the twenty-second section of the act concerning corporations, this court had construed the law of attachment affecting nonresident individuals to include foreign corporations. (Cohen v. Perpetual Ins. Co. 9 Mo. 421; see Bushel v. Commonwealth, 15 S. & R. 176.) The second ground of attachment was not intended to supersede or overthrow this construction. The new clause was only intended to apply to those domestic corporations which go out of the state to do their principal business. “When laws speak of things, unless the words show otherwise, they are presumed only to have reference to those things which are within the limits of the territory in which the laws have effect.” (Harness v. Green, 20 Mo. 316.) Admitting that it applies to foreign corporations, it should be taken as a cumulative and not as an exclusive ground for attachment. The effect of the construction insisted on by the appellants would be to completely restore the mischief cured by this court in Cohen v. Ins. Co. 9 Mo. 421; for the person of a foreign corporation is not here, the charter being the test of residence. (Marshall v. The Railroad, 16 How. 314.) There is no way of proceeding against the appellant in our courts except by attachment. The second clause of the attachment act does not repeal or limit the twenty-second section of the law of corporations, which specially relates to attachments of foreign corporations. A corporation created by one state only can not exist in two states at once. Although metaphysical and intangible, it is not ubiquitous. The corporators can not locate it out of the sovereignty that created it. (13 Pet. 519.) Though all the corporators remove from that sovereignty, the corporation does not follow them. They take their quality of corporators from a law which they can not carry about with them, any more than a judge of this court can carry his judicial functions and authority out of this state. Though all the corporators reside in another state, the corporation can not be sued by summons in that state. (See 2 How. 497; 16 Johns. 5; 14 Conn. 301; 16 Pick. 286.) It will hardly be contended that our legislature has undertaken to give authority to sue foreign corporations by summons. (See 9 Mo. 421; 1 Miles, 78; 16 Pick. 258; 16 Johns. 5; 14 Conn. 303.)

NAPTON, Judge, delivered the opinion of the court.

It must be admitted that the proper construction of our statute concerning attachments as applicable to corporations, taken in connection with the general statute concerning corporations, is not very plain.

The defendant in this case was a foreign corporation and had its chief office or place of business within this state; and the question is, can she be sued by attachment upon an allegation that “the defendant is not a resident of this state.”

The attachment law provides that this writ may be sued out, first, where the defendant is not a resident of this state; and, second, where the defendant is a corporation whose chief office or place of business is out of this state. Each of these allegations was made in this case; but as the second was clearly disproved, the first only was relied upon.

The act concerning corporations says: “Any...