Honerine Min. & Mill. Co. v. Tallerday Steel Pipe & Tank Co.
| Decision Date | 05 December 1906 |
| Docket Number | 1794 |
| Citation | 88 P. 9,31 Utah 326 |
| Parties | HONERINE MIN. & MILL. CO. et al. v. TALLERDAY STEEL PIPE & TANK CO. et al |
| Court | Utah Supreme Court |
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.
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.
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 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 therefor. There is considerable evidence tending to sustain all the grounds set forth in the motion to quash which need not be set out here. The court, upon hearing of the motion, sustained the same, quashed the service of summons upon the ground that said Elliott was not an agent, or representative of said Tallerday Company, and entered a judgment dismissing the action, from which judgment this appeal is taken.
Respondents claim that the bill of exceptions is defective because the certificate of the judge allowing it does not certify that all of the evidence is contained therein. While this is true, and while it has repeatedly been held by this court that where the judge allowing the bill of exceptions does not certify that it contains all the evidence, and where this fact does not appear in some other way or manner in the record, then this court is precluded from passing upon any question of fact involved in the action, and may be precluded from passing upon questions of law dependent upon any facts that might have affected the decision of the court below. We are not disposed to depart from or modify the rule in that regard heretofore established by this court; but in this case, in view of the conclusion reached by us, we, shall assume that the bill of exceptions contains all of the evidence submitted by appellants, and as they ask our judgment upon that, respondents cannot complain. The question, therefore, is, did the court err in sustaining the motion to quash and in dismissing the action? Counsel for the appellants contend that under the provisions of section 2948, Revised Statutes 1898, as amended by the Laws of 1899, p. 74, c. 51, and the Laws of 1905, p. 126, c. 105, the service of summons upon T. K. Elliott, was a statutory service as applicable to the service of process on foreign or nonresident corporations, and hence the court erred in dismissing the action. Section 2948, so far as material here provides:
...
To continue reading
Request your trial
-
Boston Acme Mines Development Co. v. Clawson
... ... 552; ... [240 P. 173] ... Honerine Min. & M. Co. v. Pipe & Tank ... Co. , 31 Utah ... 397, ... 70 P. 679; Iron & Steel Co. v. Iron & ... Steel Co. (C. C. A.) 284 F ... ...
- Brown v. Southern Pac. Co.