Knox Bros. v. E.W. Wagner & Co.

• Decision Date: 08 March 1919
• Parties: KNOX BROS. v. E. W. WAGNER & CO.
• Court: Tennessee Supreme Court

209 S.W. 638

141 Tenn. 348

KNOX BROS. v. E. W. WAGNER & CO.

Supreme Court of Tennessee.

March 8, 1919

Error to Circuit Court, Davidson County; Thos. E. Matthews, Judge.

Action by W. C. Knox and another, composing the firm of Knox Bros against E. W. Wagner & Co. Upon the overruling of plaintiffs' demurrers to pleas in abatement to the jurisdiction, plaintiffs elected to stand on their demurrer and refused to plead. From a judgment dismissing their suit they bring error. Judgment affirmed.

Jas. L Watts, of Nashville, George E. Banks, Jr., of Winchester, and Tatum, Thach & Lynch, of Chattanooga, for plaintiffs in error.

Thos. G. Watkins and Lee Brock, both of Nashville, for defendants in error.

HALL J.

An action brought in the circuit court of Davidson county by W. C. Knox and I. L. Knox, composing the firm of Knox Bros., against E. W. Wagner & Co., to recover the sum of $3,000, alleged to have been deposited by the plaintiffs in error with E. W. Wagner & Co. as margins on alleged wagering contracts on the future price of wheat, which sum, it is alleged, was lost by the plaintiffs in error to the said E. W. Wagner & Co. in said wagering transactions.

Summons was issued to the sheriff of Davidson county, directing him to summon E. W. Wagner & Co. to answer the complaint of the plaintiffs below. The sheriff executed said summons by serving it on one T. M. Pritchett, the local manager of E. W. Wagner & Co. in Davidson county.

Pleas in abatement to the jurisdiction of the court were filed by E. W. Wagner and Ernest Tietgens, averring that E. W. Wagner & Co. was not a corporation, but was a partnership composed of E. W. Wagner and Ernest Tietgens; that E. W. Wagner and Ernest Tietgens were nonresidents of the state of Tennessee, and were citizens and residents of the state of Illinois, at the time said suit was instituted, and at the time process in the same was issued and served on T. M. Pritchett, and were still such nonresidents of Tennessee and residents of the state of Illinois, and had so been for a long time prior to the institution of said suit.

Said pleas in abatement further averred that the attempted service of process on them in said cause was made under chapter 89 of the Acts of 1859-60 of the General Assembly of Tennessee, and that such service was void because the statute authorizing this mode of service violates article 1, section 8, of the Constitution of the state of Tennessee, which provides:

"That no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land."

That said statute is also violative of section 1, article 14, of the Amendments to the Constitution of the United States, which provides:

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

These pleas in abatement were demurred to by the plaintiffs in error, and the case coming on to be heard before the circuit judge upon said pleas in abatement and demurrers, the demurrers were overruled, and plaintiffs in error electing to stand on their demurrers, and refusing to plead further to said pleas in abatement, a judgment was entered dismissing their suit. From this judgment they have appealed to this court, and have assigned the action of the circuit judge for error.

It is a well-established rule of practice in this state that, when the sufficiency of a pleading is tested by demurrer, the averments of the pleading must be taken as true. It must be, therefore, held, in accordance with the averments contained in said pleas in abatement, that E. W. Wagner & Co. is not a corporation, but is a partnership, composed of E. W. Wagner and Ernest Tietgens, and was such at the time the process was issued and served upon T. M. Pritchett, their local manager in Davidson county; further, that E. W. Wagner and Ernest Tietgens, at the time of the issuance of the summons, and at the time of its service, were nonresidents of the state of Tennessee, and residents of the state of Illinois; that service of said summons was not had upon either E. W. Wagner or Ernest Tietgens, but alone upon T. M. Pritchett, their agent or local manager in Davidson county.

It is insisted by the plaintiffs in error that service of process upon T. M. Pritchett, the local manager of defendants in error, was binding upon them, and gave the court jurisdiction of their persons, for the purposes of said suit, under chapter 89 of the Acts of 1859-60 (Thompson-Shannon's Code, § 4542). This statute reads as follows:

"When a corporation, company, or individual has an office or agency, or resident director, in any county other than that in which the chief officer or principal resides, the service of process may be made on any agent or clerk employed therein in all actions brought in such county against said company growing out of the business of, or connected with, said company or principal's business; but this section shall apply only to cases where the suit is brought in such counties in which such agency, resident director, or office is located."

It is insisted by defendants in error that this statute, in so far as it applies to nonresident individuals, violates the federal Constitution as to due process of law.

In Flexner v. Farson et al., 268 Ill. 435, 109 N.E. 327, Ann. Cas. 1916D, 810, the court, in passing on the validity of a similar statute passed by the Legislature of the state of Kentucky, said:

"The several states of the Union are not in

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