Hayman v. Monongahela Consol. Coal & Coke Co.

• Decision Date: 23 October 1917
• Docket Number: 3209.
• Citation: 94 S.E. 36,81 W.Va. 144
• Parties: HAYMAN v. MONONGAHELA CONSOL. COAL & COKE CO.
• Court: West Virginia Supreme Court

94 S.E. 36

81 W.Va. 144

HAYMAN v. MONONGAHELA CONSOL. COAL & COKE CO.

No. 3209.

Supreme Court of Appeals of West Virginia.

October 23, 1917

Submitted October 9, 1917.

Syllabus by the Court.

A foreign private corporation, maintaining no office or agency in this state, which transports its products to market in its own barges and by means of its own steamboats along the Ohio river from Pittsburg to Cincinnati, Louisville, and other points, not in this state, is not thereby doing business in West Virginia, within the meaning of chapter 124 of the Code of 1913 relating to service of process.

Nor is the captain of one of its steamboats, temporarily taking refuge along the West Virginia shores from the perils of navigation caused by floating ice in the river, an agent of such corporation, within the meaning of any of the statutes of this state authorizing service of process or notice on the agent of a foreign corporation.

A party, including a nonresident corporation, against whom an attachment has issued, on order of publication, and against whose property, levied on thereunder, judgment has been rendered, who has made no appearance to the action, has an absolute right by virtue of section 25, chapter 106, Code 1913 (sec. 4479), within the time therein designated, on giving security for the costs that have accrued and may thereafter accrue, to have the case reopened, and to be permitted to make defense thereto, unless he has been served with a copy of the attachment or with process in the suit more than 60 days before the date of the judgment.

Error from Circuit Court, Mason County.

Trespass on the case by Charles R. Hayman, administrator, etc against the Monongahela River Consolidated Coal & Coke Company, with order of attachment. There was an order of attachment and a judgment against its property, its motion to quash the order of sale was overruled, and its motion to file a petition for rehearing was denied, and defendant excepts and brings error. Reversed, and cause remanded.

Rankin Wiley, Chas. E. Hogg, and Robt. L. Hogg, all of Point Pleasant, for plaintiff in error.

John L Whitten, of Huntington, and Musgrave & Blessing and Somerville & Somerville, all of Point Pleasant, for defendant in error.

WILLIAMS J.

The Monongahela Consolidated Coal & Coke Company, a foreign nonresident corporation, hereinafter denominated the defendant, was sued in trespass on the case, and proceeded against by order of publication. On the 3d of January, 1914 plaintiff made affidavit that he was about to institute such action against defendant, stating the nature of his claim and the amount, at the least, which he believed he was justly entitled to recover in the action, and, as a ground for an attachment, that defendant was a nonresident, and at the same time another affidavit that he was a poor person and unable to give bond. Upon these affidavits an order of attachment was issued, returnable to the next term of court. The sheriff received it on the 27th of January and levied it on the same day on eight of defendant's barges in the Ohio river, in Mason county. On the 21st of February, 1914, another attachment was issued, and levied, on the 4th of March, on defendant's steamboat Valiant, then in the Kanawha river, in Mason county. A copy thereof was also delivered to F. H. Wilkins, captain of the steamboat. Defendant was not served with summons and made no appearance to the action. On June 10, 1914, a jury was impaneled and assessed plaintiff's damages at $2,975, the amount alleged in his declaration, and judgment in rem was thereon rendered against the attached property, and the sheriff directed to sell the same as under execution. Pursuant thereto he published notice that on the 30th day of December, 1914, he would sell the attached steamboat for cash sufficient to pay the said sum of $2,975, and interest thereon from the 10th of June, 1914.

Defendant appeared by counsel on the 24th of December, 1914, at a special term of the court, after due notice to plaintiff, and moved to quash the order of sale. The court overruled its motion, but required plaintiff to give bond with good security, to be approved by the clerk of the court, in the penalty of $6,000, conditioned to perform such future order as might be made in the suit, in case defendant should appear and make defense within the time prescribed by law, and directed the sheriff to adjourn his sale until the 9th of January, 1915. On the 10th of February, 1915, defendant appeared by counsel, and tendered and asked leave to file its petition in the cause, praying to have the case reheard, according to the provisions of section 25, c. 106, Code (sec. 4479), and signified its readiness to give such bond as is required by said statute. Plaintiff appeared by counsel and resisted the filing of the petition, and the matter was set down for argument. On the 30th of March, 1915, the sheriff was permitted to amend his return to the attachment, which was issued on the 21st of February, and levied on the 4th of March, 1914, by stating therein that he delivered a copy of the order of attachment to F. H. Wilkins, master of the steamboat Valiant--

"he being an agent of the said Monongahela Consolidated Coal & Coke Company, in the actual employment of said defendant, the Monongahela Consolidated Coal & Coke Company, a corporation, in Mason county, West Virginia, there being no mayor, president, or other chief officer of said corporation, or any person appointed pursuant to law to accept service of process for said corporation, within the county or state, and there being no secretary, treasurer, or cashier of said corporation within the said county or state, and there being no trustee, director, or visitor of said corporation within the state, and there being no other person within the said state of West Virginia upon whom service of process can be had."

On the 31st of March, 1916, at a special term, defendant's motion that it be permitted to file its petition was argued by counsel and overruled, and the right to file such petition denied, and defendant took a bill of exceptions, making the petition a part of the record.

Defendant avers in said petition that it is a corporation created, organized, and doing business under the laws of Pennsylvania, having its principal office and place of business in that...