Gibson v. Manufacturers' Fire & Marine Ins. Co.
| Decision Date | 25 February 1887 |
| Citation | 10 N.E. 729,144 Mass. 81 |
| Parties | GIBSON v. MANUFACTURERS' FIRE & MARINE INS. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
L.M. Child, for plaintiff.
This is an action upon a judgment of the district court for the territory of New Mexico, a competent and superior court of jurisdiction, established by the laws of the United States. A judgment of the said court, being a court of record, and a suit being brought upon the same, the record of such court is accepted as binding and final, and cannot be questioned except as to the jurisdiction thereof. The only question that is or can be raised upon the agreed facts is whether the court had competent jurisdiction of the defendant in this case. The defendant, having appointed an agent, is estopped from now claiming that the agent appointed by them was in violation of the law of the territory. La Fayette Ins Co. v. French, 18 How. 408.
The defendant has no right to show that, by an agreement between itself and its agent, that his agency was revoked; such revocation not being notified to the plaintiff, or to the authorities of the state which required such an agency. The agency was for the protection of the inhabitants of the territory, and could not be revoked at the will of the defendant.
The defendant appeared by attorney, in answer to the process served upon Kent. At first they appeared specially, and contested the sheriff's return. The motion to quash the return having been overruled, the attorneys were ordered by the court to plead to the declaration, which they did on July 5, 1885; on which plea issue was joined. This appearance by counsel, there being no suggestion that he had no authority from the defendant, or that they appeared fraudulently, is conclusive on the question of jurisdiction. Hill v Mendenhall, 21 Wall. 453; Weeks, Attys. at Law, § 199.
The court, once having had jurisdiction, cannot lose it because the attorneys withdraw their appearance, whether with or without the consent of the plaintiff's counsel. The attempt here, on the part of the defendant, after having tried his main point in the case before the court, and having been defeated, and then waiting four months to withdraw his appearance, that possibly he might have another opportunity before this court to try the same question, is exactly contrary to the purpose and theory of the law, and contrary to the constitution of the United States, and the laws for the enforcement of the same. The decision of the court of New Mexico, on the question of the agency of Kent, is final and binding, and cannot under the law be reopened by this court. Freem.Judgm. §§ 130, 500, 563.
J.C Gray and W.L. Putnam, for defendant.
No action can be maintained on the judgment of a court of a foreign state, or of another state or territory of the United States, unless such court had jurisdiction of the person of the defendant. Gilman v. Gilman, 126 Mass. 26; Wright v. Andrews, 130 Mass. 149; Thompson v. Whitman, 18 Wall. 457. Statements as to service, in the record of such judgment, may be contradicted by parol evidence. Carleton v. Bickford, 13 Gray, 591. Jurisdiction of a non-resident can only be acquired in one of two ways,--either by personal service of process within the jurisdiction, or by voluntary appearance. There was no service to give jurisdiction. Apart from the statute of New Mexico, and the instrument filed in the auditor's office, there could be no service on the defendant in that territory. At common law, which, apart from statute, is the law of New Mexico, no court can acquire jurisdiction of a foreign corporation by service of process. Andrews v. Michigan Cent. R. Co., 99 Mass. 534. Even if a foreign corporation does not ever become subject to the jurisdiction of a court, by service of process on a person not appointed under a statute its agent for that purpose, it does not become so, in a state where it is not doing business, by service on a person who is not its agent for any purpose. If any authority is used for this, it will be found in St. Clair v. Cox, 106 U.S. 350, 1 S.Ct. 354. Under the statute and the instrument filed in the auditor's office, there was no service on the defendant. No service was made upon the agents authorized by the instrument to receive service.
An authority to two cannot be exercised by one alone. Sutton v. Cole, 3 Pick. 232, 244, 245; Copeland v. Mercantile Ins. Co., 6 Pick. 198, 202, 203; Pennington v. Morse, Dyer, 62a. Nor is the principle altered by the fact that the duty imposed upon the agents is not one calling for any great exercise of discretion. Pennington v. Morse, supra; Sutton v. Cole, supra; Co. Litt. 49b.
One partner cannot receive service of original process directed against the firm. All Kent's powers to act on behalf of the firm were lost by the dissolution of the firm. Dry v. Davy, 10 Adol. & E. 30; Billingsley v. Dawson, 27 Iowa, 210; Hartford Co. v. Wilcox, 57 Ill. 180; Stewart v. Rogers, 19 Md. 98.
The authority given by the instrument had been revoked; and the defendant is not estopped to show this. The authority is revocable at the pleasure of the principal. The defendant is not estopped to show that the authority had been revoked. Three things are necessary to raise an estoppel against the defendant: (1) That the defendant should have made the statement; (2) that plaintiff should have known and believed that statement; (3) that she should have suffered legal damage by relying on it. "It is a general rule that a party cannot set up, by way of estoppel against another party, any act or declaration, unless by reason of such act or declaration he has been led to do or omit to do something which otherwise he would have not omitted or not done." Plymouth v. Wareham, 126 Mass. 475, 478; Fitch v. Harrington, 13 Gray, 468; Pott v. Eyton, 3 C.B. 32; Wood v. Pennell, 51 Me. 52. Even if the plaintiff did not know of the statement, and relied on it, she has suffered no legal injury.
The special appearance for the purpose of objection to the jurisdiction did not give jurisdiction. Walling v. Beers, 120 Mass. 548; Harkness v. Hyde, 98 U.S. 476; Wright v. Boynton, 37 N.H. 9, 19. Pleading to the merits by order of the court, after the objection to the jurisdiction was overruled, did not give the court jurisdiction. Walling v. Beers, supra; Harkness v. Hyde, supra. The defendant's withdrawal of its appearance and plea by leave of court and consent of the plaintiff, replaced it in exactly the position it would have occupied had it never appeared or pleaded at all. See Michew v. McCoy, 3 Watts. & S. 501; Lodge v. State Bank, 6 Blackf. 557.
OPINION
The judgment sued upon having been recovered in one of the territories of the United States, it was competent for the defendant to show, notwithstanding any recitals in the record to the contrary, that the court in which it was rendered had no jurisdiction of the subject-matter of the controversy or the party defendant. Carleton v. Bickford, 13 Gray 591. It is not contended that, apart from the instrument filed in the auditor's office of the territory, there could be service upon the defendant in that territory. The law of the territory required any insurance company doing business to appoint an attorney at law in each county where its agencies were established, and to file with the territorial auditor an instrument, duly signed and sealed, which should authorize such attorney to acknowledge service of legal process, and also consenting that any service of process on such attorney should be taken...
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