International Harvester Co. v. Commonwealth

• Decision Date: 10 April 1912
• Citation: 145 S.W. 393,147 Ky. 655
• Parties: INTERNATIONAL HARVESTER CO. v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

145 S.W. 393

147 Ky. 655

INTERNATIONAL HARVESTER CO. v. COMMONWEALTH.

Court of Appeals of Kentucky.

April 10, 1912

Appeal from Circuit Court, Breckenridge County.

The International Harvester Company was convicted of violating the anti-trust law, and it appeals. Affirmed.

Humphrey & Humphrey and Arthur M. Rutledge, all of Louisville, and L A. Faurest, of Elizabethtown, for appellant.

James Garnett, Atty. Gen., Carroll & Carroll, and T. C. Carroll all of Louisville, and J. R. Layman, of Elizabethtown, for the Commonwealth.

MILLER J.

At the October term, 1911, of the Breckenridge circuit court, the grand jury returned an indictment against the International Harvester Company of America, under section 3915 of the Kentucky Statutes, as amended March 21, 1906 (Laws 1906, c 117), charging it with being a member of a pool, trust, or combination with other companies, for the purpose or regulating and controlling the price of harvesting machinery and to enhance the cost thereof above its reasonable value.

Process having issued upon the indictment, it was executed in the manner indicated by the return thereon, which reads as follows: "Executed the within summons by delivering a true copy of the same to O. L. Pace, chief officer and managing agent of the International Harvester Company of America, found in Breckenridge county, Kentucky; its president and vice president, secretary, librarian, cashier, treasurer and clerk, being absent from said county. February 2, 1912. Dennie Sheeran, S. B. C., by A. T. Beard, D. S." On February 14, 1912, the appellant entered a special appearance for that purpose only, and moved the court to quash the return upon the process, upon the grounds recited in the motion, that it was a Wisconsin corporation; that it was not carrying on any business in Kentucky at the time the process was served; that O. L. Pace was not its officer or agent of any description; that to proceed upon said service would be in violation of the law of Kentucky, and of the fourteenth amendment to the Constitution of the United States, because it did not constitute due process of law; and also that it was in violation of the interstate commerce clause of the federal Constitution.

Upon the hearing of the motion, appellant read the affidavits of O. L. Pace, J. L. Gardner, and William Browning; while the commonwealth read the affidavits of J. R. Layman and C. M. Schupp, with certain exhibits, and introduced M. D. Beard, who testified orally. The proof upon the part of the Harvesting Company shows, in substance, that it was carrying on business in Kentucky in the usual way until some time in October 1911; and, pursuant to section 571 of the Kentucky Statutes, it had appointed J. L. Gardner as its agent upon whom process could be served; that it had ceased to do business in Kentucky, and had not done business therein since some time prior to November 1, 1911; that on October 28, 1911, it had revoked the authority of Gardner to receive process for it by filing a formal revocation in the office of the Secretary of State; that Pace, the person upon whom the process was served, had formerly been employed by the appellant as a "blockman," with authority to transact certain business for the Harvesting Company in Kentucky; that, prior to November 1, 1911, the Harvesting Company had removed all of its property and business office from the state of Kentucky to New Albany, Ind., and had revoked the authority of all its agents, including Pace; that since that time its only transaction with the people of Kentucky had been the soliciting of proposals for its harvesting machines by means of traveling solicitors, Pace being one of them; that these traveling solicitors had no authority to bind the company in any way, but they merely took orders from proposed customers; and that these orders were of no validity until accepted by the company at a point outside of the state, and when so accepted the goods thus sold were shipped to Kentucky from a point outside of the state, where the title passed to the purchaser. The proof upon the part of the commonwealth shows that the Harvesting Company had moved out of the state in order to avoid the prosecution of indictments and penal actions against it; that some of the particular acts complained of in the indictment and the business so transacted were done by and through said Pace, as agent for said company; that Gardner had endeavored to avoid service of process upon him, which had issued out of the Hardin circuit court upon an indictment or penal action there pending; that one Beard had a commission contract with the Harvester Company which expired on September 1, 1911, and that, he having left in his hands certain machinery belonging to the Harvester Company, and which he had not sold, Bondurant, an agent of the Harvester Company, had a settlement with him for this machinery in November, 1911, under which Beard purchased the machinery and gave his note, payable to the order of the Harvester Company, for the purchase price.

The circuit judge overruled appellant's motion to quash the return upon the process, and the appellant, having failed to appear or plead, was fined $500, the lowest penalty prescribed by the statute for the offense charged in the indictment. Subsequently the Harvester Company moved to set aside this judgment, upon the ground that it was a void judgment, and, this motion having been overruled, the Harvester Company appeals to this court for a reversal.

The only question involved, therefore, is whether there was such a service of process upon the Harvester Company that would sustain the judgment rendered.

Under section 147 of the Kentucky Code of Practice in Criminal Cases, the summons in criminal cases must be served in the same manner as a summons in civil cases.

Subsection 3 of section 51 of the Civil Code of Practice provides for the service of process, in an action against a private corporation, as follows: "In an action against a private corporation the summons may be served, in any county, upon the defendant's chief officer, or agent, who may be found in this state; or it may be served in the county wherein the action is brought upon the defendant's chief officer or agent who may be found therein."

Subsection 6 of said section 51 reads as follows: "In actions against an individual residing in another state, or a partnership, association, or joint stock company, the members of which reside in another state, engaged in business in this state, the summons may be served on the manager, or agent of, or person in charge of, such business in this state, in the county where the business is carried on, or in the county where the cause of action occurred."

Section 732 of the Civil Code of Practice, providing for the construction of the Code, declares that, unless a different intention be expressed, or be shown by the context, the following rule, among others, shall prevail: "The chief officer or agent of a corporation which has any of the officers or agents herein mentioned is: First, its president; second, its vice-president; third, its secretary or librarian; fourth, its cashier or agent; fifth, its clerk; sixth, its managing agent."

It is first contended that the service is insufficient under subsection 6 of section 51, above quoted, because that section does not specifically include corporations within its terms. Section 208 of the Constitution, however, provides: "The word corporation as used in this Constitution shall embrace joint stock companies and associations." And, pursuant to this constitutional provision, section 457 of the Kentucky Statutes, regulating the construction of statutes, provides: "The words 'corporation,' 'company,' may be construed as including any corporation, company, person, persons, partnership, joint stock company or association."

In construing these provisions in Adams Express Co. v. Schofield, 111 Ky. 832, 64 S.W. 903, 23 Ky. Law Rep. 1120, it was held that the words "corporation" and "company" should be so construed as to include any corporation, company, person, persons, partnership, joint-stock company, or association, thus making the terms "corporation" and "association" synonymous within the meaning of these statutory provisions for the service of process. It seems reasonably clear, therefore, that appellant, although it be a corporation, is equally within the scope and meaning of subsection 6 of section 51 of the Code.

It is not necessary to inquire whether the sheriff's return is in proper form, since it may be amended, if the record shows that the proper person was served. Nelson Morris & Co. v. Rehkopf & Sons, 75 S.W. 203, 25 Ky. Law Rep. 352; Cumberland v. Lewis, 108 S.W. 347, 32 Ky. Law Rep. 1300.

The real question, therefore, is this: Was Pace an agent, under subsection 3, or under subsection 6, of section 51, above quoted, so that process served upon Pace will sustain a judgment against appellant? Was the Harvester Company engaged in business in the state of Kentucky, and was Pace its agent in charge of such business at the time the summons was served upon him? If these questions are to be answered in the affirmative, the service is admittedly good, and the judgment a valid one.

The Code provision above referred to was passed upon and upheld by this court, under varying states of fact, in Boyd Commission Co. v. Coates, 69 S.W. 1091, 24 Ky. Law Rep. 730; Nelson Morris, & Co. v. E. Rehkopf & Sons, 75 S.W. 203, 25 Ky. Law Rep. 352; Guenther v. American Steel Hoop Co., 116 Ky. 580, 76 S.W. 419, 25 Ky. Law Rep. 795; Wortham v. Illinois Life Insurance Co., 107 S.W. 276, 32 Ky. Law Rep. 827; Johnson v. Westerfield's Adm'r, 143 Ky. 10, 135 S.W. 425, and in other cases.

A trading corporation is personally present for the...