Knapp v. Wallace

• Decision Date: 17 December 1907
• Citation: Knapp v. Wallace, 50 Or. 348, 92 P. 1054 (Or. 1907)
• Parties: KNAPP v. WALLACE et al.
• Court: Oregon Supreme Court

92 P. 1054

50 Or. 348

KNAPP v. WALLACE et al.

Supreme Court of Oregon

December 17, 1907

Appeal from Circuit Court, Josephine County; H.K. Hanna, Judge.

Action by Rolla S. Knapp against Edgar T. Wallace and others.From a judgment for defendants, plaintiff appeals.Reversed and remanded.

The complaint in this case sets out cause of suit for foreclosure of a mortgage, bearing date of February 7, 1900, executed by Edgar T. Wallace, in favor of Mrs. O. Julien, upon mining lands in Josephine county, Or., as security for the payment of a promissory note for $1,445, with interest thereon, at the rate of 10 per cent. per annum; that thereafter on March 7, 1901, said Wallace conveyed said lands to the defendant the Althouse Mining Company, a corporation, and on October 13, 1904, said Mrs. Julien duly assigned said note and mortgage to plaintiff, who is now the owner and holder thereof; that the defendant, the Althouse Mining Company, is a foreign corporation organized under the laws of the state of Maine; that its principal office and place of business is in Yreka, Cal.; that defendant, James Camp, claims some interest under a prior mortgage, but that the same has been paid.The defendant, Camp, answers the complaint, alleging that he is the owner of a note and mortgage executed by defendant, Wallace, September 26, 1899, upon the same property in favor of Minnie P. Shotwell, in the sum of $4,256, with interest thereon at the rate of 10 per cent. per annum, and that on May 14, 1904, he commenced a suit in the circuit court of the state of Oregon, for Josephine county to foreclose said mortgage, in which he made said Wallace and Mrs. Julien and the Althouse Mining Company, defendants; and on January 9, 1905, decree was rendered thereon in favor of this defendant, Camp, foreclosing his said mortgage and the rights of Mrs. Julien under the mortgage at that time owned by her, which is the one sought to be foreclosed by plaintiff, Knapp, in this suit, and pleads that decree as a bar to this suit.Plaintiff replied to the new matter of the answer, in which he questions the jurisdiction of the court to render the decree by reason of alleged defects in proof of service of the summons.

W.C Hale, for appellant.

H.D. Norton, for respondents.

EAKIN J.(after stating the facts as above).

At the trial, the judgment roll in the suit of Camp v. Althouse Mining Co. et al. was offered in evidence by the plaintiff to show want of jurisdiction of the court, and by the defendant to show jurisdiction.The proof of service of the summons upon the defendant, the Althouse Mining Company, appears by the return of the sheriff of Multnomah county, W.A. Story, by H.L. Moreland, his deputy, made on the 18th day of May, 1904, by personal service in Multnomah county on B.F. Walker, president of the said Althouse Mining Company; but it does not show that such service was made in the county where defendant corporation had its principal office or place of business, or that it was doing business within the state of Oregon, nor does either of those facts appear anywhere in the record.B. & C. Comp. § 55, provides that a corporation may be served by delivering a copy of the summons and certified copy of the complaint "to the president or other head of the corporation, secretary, cashier, or managing agent, or in case none of the officers of the corporation above named shall reside or have an office in the county where the cause of action arose, then to any clerk or agent of such corporation who may reside or be found in the county, or if no such officer be found, then by leaving a copy thereof at the residence or usual place of abode of such clerk or agent."

Plaintiff insists that the record discloses want of jurisdiction, in that the sheriff's return shows service upon Walker, as president of the defendant corporation in Multnomah county without any showing that the company is doing business within the state or has an office therein, or that such officer was within the state upon business of the corporation.Whether this could be collaterally attacked upon the recital of this return, in case defendant were a domestic corporation, is not necessary for decision here.But the defendant is a foreign corporation, and, before service in Oregon upon its president will confer jurisdiction, it must be made to appear that the corporation is doing business in Oregon, or otherwise within its jurisdiction.If the company is doing business in Oregon, or has an office therein, in connection with its business, then the presence of an officer in connection therewith is the presence of the corporation.As said in Farrell v. Oregon Gold Co.,31 Or. 463, 467, 49 P. 876, 877: "So long as the corporation confines its operations to the state within which it was created, it cannot be subjected to the jurisdiction of a court of another state, where it has no office or transacts no business, by the service of process on some officer or agent while temporarily present in the latter state, because he cannot take the corporation with him beyond the jurisdiction of the state of its creation."In such a case no presumption can arise that service on Walker, as president within the state, is service upon the corporation.As said in 17 Am. & Eng. Ency. (2d Ed.)p. 1078;"Jurisdiction of the person of a defendant is presumed, in support of the judgment, only when he is within the territorial limits of the court, and, if he is not within such limits, the record must show service on him."Galpin v. Page, 18 Wall. (U.S.) 350, 21 L.Ed. 959.Therefore the return indorsed upon the summons is insufficient to show service upon the corporation.Unless it is aided by the recitals in the decree, such defect renders the decree void as to defendant corporation, but the decree recites: "And now having fully examined the return made in the cause, wherefore it is thereby and otherwise made to appear to the satisfaction of the court that the defendant, Althouse Mining Company, has been duly served with summons within the state of Oregon," default is entered.The authorities are not in harmony as to when such a recital is conclusive upon a collateral attack, some holding that it is conclusive unless it is positively contradicted by the record; others holding that, if the record discloses the return upon which the recital is based, and such return does not support the recital, it will not aid the return.See1 Black, Judgments, §§ 273, 275.Mr. Justice Field, in Galpin v. Page, 18 Wall. (U.S.) 350, 365, 21 L.Ed. 959, in discussing presumptions in favor of the judgment of a court of general jurisdiction, says: "It is presumed to have jurisdiction to give the judgments it renders until the contrary appears.And this presumption embraces jurisdiction not only of the cause or subject-matter of the action in which the judgment is given, but of the parties also.*** The latter (of the parties) should regularly appear, by evidence, in the record of service of process upon the defendant or his appearance in the action.*** But the presumptions, which the law implies in support of the judgments of superior courts of general jurisdiction, only arise with respect to jurisdictional facts, concerning which the record is silent.*** When, therefore, the record states the evidence or makes an averment with reference to a jurisdictional fact, it will be understood to speak the truth on that point, and it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise than as averred.If, for example, it appears from the return of the officer, or the proof of service contained in the record, that the summons was served at a particular place, and there is no averment of any other service, it will not be presumed that service was also made at another and different place; or if it appear in like manner that the service was made upon a person other than the defendant, it will not be presumed, in the silence of the record, that it was made upon the defendant also.Were not this so, it would never be possible to attack collaterally the judgment of a superior court, although a want of jurisdiction might be apparent upon its face.The answer to the attack would always be that, notwithstanding the evidence or the averment, the necessary facts to support the judgment are presumed."1 Black on Judgments, § 273, says: "But, while it is inadmissible to contradict the...