Honerine Min. & Mill. Co. v. Tallerday Steel Pipe & Tank Co., 1794

• Court: Supreme Court of Utah
• Writing for the Court: FRICK, J.
• Citation: 88 P. 9,31 Utah 326
• Parties: HONERINE MIN. & MILL. CO. et al. v. TALLERDAY STEEL PIPE & TANK CO. et al
• Docket Number: 1794
• Decision Date: 05 December 1906

88 P. 9

31 Utah 326

HONERINE MIN. & MILL. CO. et al.
v.
TALLERDAY STEEL PIPE & TANK CO. et al

No. 1794

Supreme Court of Utah

December 5, 1906

APPEAL from District Court, Salt Lake County; M. L. Ritchie, Judge.

Action by the Honerine Mining & Milling Company and another against the Tallerday Steel Pipe & Tank Company and another. From a judgment quashing the summons for failure of service, plaintiffs appeal.

AFFIRMED.

Snyder & Snyder for appellants.

APPELLANT'S POINTS.

The judgment dismissing the action terminated the matter; and the judgment was, therefore, a final judgment, and, as such, appealable. (Re Auerbach Est., 23 Utah 529; Watson v. Mayberry, 15 Utah 265.)

The words "management, direction or control," are, when considered in this connection, very broad terms; their comprehensiveness and importance appearing in the order they are used. That the agent Elliott had the "management" of this property cannot be gainsaid. He likewise had both "direction," and control. (9 Enc. Law [2 Ed.], 459-60; Potter v. Adriance, 44 N.J. Eq. 17; Rex v. Rawlinson, 13 Eng. C. L. 99.)

Synonymous with command. (Mulvey v. State, 43 Ala. 316).

Equivalent of instruction. (Railroad v. Barnes, 2 N.D. 367.)

Service by an attorney who had claims in his hands, for collection, belonging to the defendant, was good. (Saunders v. Nursery Co., 6 Utah 431; Burgess v. Aultman & Co., 80 Wis. 292, 50 N.W. 175; Moch v. Ins. Co., 10 F. 702; Walker Bros. v. Insurance Co., 2 Utah 331.)

Under a similar statute to our present one, service on a subagent having collections in his hands was held good. (Burgess v. Aultman, supra; Porter v. Railway, 1 Neb. 14; Palmer v. Post Co., 32 N.Y.S. 992 and cases.)

Where a traveling salesman visited the state in relation to the matter out of which the cause of action arose, it was held that the service was good under a statute requiring service on director, officer or agent. (Abbeville, etc., Co. v. Western Co., 39 S.E. 559; Ryerson v. Steere, 114 Mich. 352, 72 N.W. 131; New Haven, etc., Co. v. Mfg. Co., 130 F. 605; Nelson, Morris & Co. v. Rehkopt, 75 S.W. 203.)

Stephens & Smith & respondents.

RESPONDENT'S POINTS.

The appellant claims that the decision and order of the court setting aside the service of the summons is unsupported by and contrary to the evidence.

The general rule has been laid down by this court in numerous decisions to the effect that where a bill of exceptions does not purport to give all of the evidence, the court cannot consider rulings based on its sufficiency, and it will be presumed upon appeal that there was sufficient evidence to support the findings. (Olson v. Railroad, 24 Utah 460; Cochrane v. Bussche, 7 Utah 233, 26 P. 294; Culmer v. Cain, 22 Utah 216, 61 P. 1008; Snyder v. Emerson, 19 Utah 321, 57 P. 300; Warner v. Association, 8 Utah 431, 32 P. 696; Railroad v. Lorentzen, 24 C.C.A. 262, 74 F. 10; Alridge v. Alridge, 120 N.Y. 614, 24 N.E. 1022; James v. Dexter, 113 Ill. 654; Wood v. Railway, 49 Mich. 370, 13 N.W. 779; Beatty v. O'Connor, 106 Ind. 81, 5 N.E. 880; Antisdel v. Railway, 26 Wis. 145, 7 Am. Rep. 44; McLain v. Morse, 42 Neb. 52, 60 N.W. 334; State v. Strohbehn, 96 Iowa 339, 65 N.W. 304; Railway v. Amos, 54 Ark. 159, 15 S.W. 362; White Pine Co. v. Herrick, 19 Nev. 311; 10 P. 215; People v. Williams, 45 Cal. 25; Field v. Mining Co., 25 Utah 76; Crooks v. Harmon, 29 Utah 304; Mitchell v. Jensen, 29 Utah 346; Hannan Brothers v. Waltenspiel, 29 Utah 466; Stone v. Ogden Packing Company, Utah .)

In the noted case of U.S. v. Telephone Co., 29 F. 37, there is a thorough discussion as to what constitutes doing business within a state; and the court held that the owning of instruments in a state, leased to other corporations, and the receiving of rentals therefrom does not domesticate such corporation.

The court held that:

"In the absence of a voluntary appearance, three conditions must concur or coexist in order to give the Federal Court jurisdiction in personam over a corporation created without the territorial limits of the state in which the court is held, namely:

1st. It must appear as a matter of fact that the corporation is carrying on its business in such foreign state or district;

2nd. That such business is transacted or managed by some agent or officer appointed by and representing the corporation in such state; and

3rd. The existence of some local law making such corporation or foreign corporations generally amenable to suit there, as a condition expressed or implied of the doing business within the state." (Goodhope Co. v. Wire Fencing Co., 22 F. 635; Glass Co. v. Glass Mfg. Co., 87 F. 418; Clews v. Iron Co., 44 F. 31; Wall v. Railway, 95 F. 398; Morawetz on Private Corporations, sec. 522; Wire Mill Co. v. Barb Wire Co., 32 F. 802.)

In the notes to the case of Foster v. Lumber Co., 23 L.R.A. 490, there is a full discussion of the cases with reference to service upon foreign corporations.

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION [88 P. 10]

[31 Utah 329] FRICK, J.

The only question involved in this case is one of personal jurisdiction. The appellants filed their complaint against the respondents in the district court of Salt Lake county, and the principal respondent, who will be designated as "Tallerday Company," being a corporation of the state of Iowa, and not engaged in doing business in Utah was sought to be served with process by serving summons on one T. K. Elliott, who it is claimed, was an agent of said corporation upon whom service of process could be made, under the statute of this state. After the return of summons showing service upon said Elliott, as agent for respondent Tallerday Company, said company appeared specially and objected to the service of summons as made, and moved to quash the same upon substantially the following grounds: (1) That said Tallerday Company is a foreign corporation, and has never done business within the state of Utah; (2) that the summons in the action was served upon T. K. Elliott who is not an officer of [31 Utah 330] said company; (3) that said Elliott, at the time of service, was not a clerk, superintendent, general agent, cashier, principal director, ticket agent, station keeper, managing agent, or other agent having control, management, or direction of any property of said corporation. This motion was supported by affidavits, and upon a hearing of the same, other evidence was produced from all of which it appears that the Tallerday Company some time previous to the year 1905, had sold a lot of pipe to the Utah Mining Machinery & Supply Company (hereafter called Supply Company) a Utah corporation; that a balance remained unpaid for said pipe concerning which a dispute arose. It further appears that T. K. Elliott had no connection whatever with said Tallerday Company at the time service was made upon him in any capacity except as hereinafter stated, but that he came West to Utah upon some private business; and, upon leaving his home in Waterloo, Iowa, H. G. Tallerday, the vice president of said Tallerday Company, had some conversation with him concerning the claim due from said supply company, and afterwards forwarded to said Elliott a letter to Salt Lake City, Utah in which was inclosed a statement of the account, and in which letter said Elliott was authorized to take up the matter of said claim with said supply company, and to receive payment...