McNichol v. United States Mercantile Reporting Agency

• Decision Date: 31 October 1881
• Citation: 74 Mo. 457
• Parties: MCNICHOL, Plaintiff in Error, v. THE UNITED STATES MERCANTILE REPORTING AGENCY.
• Court: Missouri Supreme Court

74 Mo. 457

MCNICHOL, Plaintiff in Error,

v.THE UNITED STATES MERCANTILE REPORTING AGENCY.

Supreme Court of Missouri.

October Term, 1881.

Error to St. Louis Court of Appeals.

REVERSED.

G. M. Stewart and Paul Bakewell for plaintiff in error.

It is a matter of public history, that for years corporations, created by the laws of states and countries foreign to Missouri, have been permitted to transact business here with its people, with almost or quite the same facility as private individuals. They have been protected in all their rights of property by its laws to the same extent as its own citizens, and enjoyed all their immunities. They have been permitted to use the processes of its courts in the enforcement of their rights against the citizens of Missouri, in the same manner and with the same effect as its citizens, and that, irrespective of their having a local establishment or habitation here. While they have enjoyed these privileges unimpeded, it is not until within a comparatively recent period that the people of Missouri could proceed against these corporations in the same manner and with the same facility as they were proceeded against. While a citizen could be sued, for the purpose of procuring a personal judgment, by the foreign corporation, against him, the corporation could only be subjected to the process of attachment, or by proceeding against the rem. Hill v. Sewing Machine Co., 4 Mo. App. 595. This was often extremely burdensome, and beyond the ability of the injured party to accomplish, because of the difficulty of procuring the necessary bond, and, besides, it entailed an undue amount of trouble, responsibility and expense to the citizen. It resulted in an unjust discrimination in favor of the foreign corporation against the citizen. If there was no property to be sequestered, the citizen of Missouri could not bring his action and establish his rights in the forum where the cause of action arose, and where the evidence existed; but he must either abandon them, or he must go to the home of the corporation and there pursue his remedy with all the obvious disadvantages. In this there was an evident want of reciprocity on the part of the foreign corporations; and the legislature has from time to time endeavored to cure this defect in the jurisprudence of this State. [See the several acts referred to in the opinion.] This legislation culminated in section 3489, Revised Statutes 1879. By this section, we insist, the legislature meant precisely what it said, and it intended to and did provide a means for service, so as to give the court jurisdiction to render a general judgment against all foreign corporations having an office or doing business in this State, except those for which other methods have been provided, as railroad and insurance companies; and this was within legislative competency. Farnsworth v. R. R. Co., 29 Mo. 75; City v. Wiggins Ferry Co., 40 Mo. 580; Gibbs v. Queen Ins. Co., 63 N. Y. 123; Barnett v. Chicago, etc., R. R. Co., 6 Thomp. & Co. (N. Y.) 359; Pope v. Man'f'g Co., 8 South. L. Rev. 182; Freeholders v. R. R. Co., 41 N. J. 255; 14 Off. Gazette 523. Statutes similar to ours exist in many of the states and have received judicial construction. Lafayette Ins. Co. v. French, 18 How. 405; Railroad Co. v. Harris, 12 Wall. 81; City Fire Ins. Co. v. Carrugi, 41 Ga. 660; Howe Machine Co. v. Souder, 58 Ga. 64; Wheeling, etc., Trans. Co. v. B. & O. R. R. Co., 1 Cin. 311; Western Union Telegraph Co. v. Pleasents, 46 Ala. 641; Runkle v. Ins. Co., 2 Fed. Rep. 9; Brownell v. R. R. Co., 3 Fed. Rep. 761; Hayden v. Man'f'g Co., 1 Fed. Rep. 93; Wilson Packing Co. v. Hunter, 7 Rep. 455; Weymouth v. R. R. Co., 1 McArthur 19; Ex parte Schollenberger, 96 U. S. 369; Railway Co. v. Whitton, 13 Wall. 270. The declaratory act of 1881 is to be considered and weighed in determining the effect to be given to the provision to which it refers. Henschael v. Schmidtz, 50 Mo. 454; Sedgwick Stat., etc., pp. 609, 623, and cases cited. It does not change, modify, limit or restrict any vested right, but only definitively determines the meaning of a former act, respecting the remedy in certain cases. If, however, the court should not take this view of this statute, it will regard it as an aid in determining the proper construction of section 3489. U. S. v. Freeman, 3 How. 556; Pike v. Megoun, 44 Mo. 499; State v. Dill, 60 Mo. 433.

Dyer & Ellis also for plaintiff in error.

Hitchcock, Lubke & Player for defendant in error.

So much of section 3489 of the Revised Statutes as authorizes summons to be served upon a foreign corporation whose chief office is out of this State “by delivering a copy of the writ and petition to any officer or agent of the corporation or company in charge of the office or place of business, or if it have no office or place of business, then to any officer, agent or employe, in any county where such service may be obtained,” is null and void if it is claimed the same gives to our courts personal jurisdiction over a foreign corporation whose chief office is out of this State. This has been expressly held. Latimer v. R. R. Co., 43 Mo. 105; Middough v. R. R. Co., 51 Mo. 520; Hill v. Wheeler & Wilson Co., 4 Mo. App. 595; Robb v. C. & A. R. R. Co., 47 Mo. 540; Farnsworth v. R. R. Co., 29 Mo. 75; St. Louis v. Wiggins F. Co., 40 Mo. 580. A foreign corporation having its chief office out of this State, is like a non-resident individual and can be sued in this State only by attachment of its goods and property. R. S., § 742; R. S., § 398. So much of section 3489 as is hereinbefore quoted, if valid at all, is valid only to the extent of pointing out one mode of service upon a foreign corporation whose property is found in this State; and to that extent it is a substitute for notice by publication. 43 Mo. 105, and cases cited.

SHERWOOD, C. J.

Action for libel published by defendant in St. Louis and elsewhere, plaintiff being resident in St. Louis. The petition, among other things, charged that “defendant is a corporation created and existing by virtue of the laws of New York, and has an office and place of business in St Louis.” Upon the filing of the petition a summons issued against defendant, and the sheriff's amended return upon the same is as follows: “Executed this writ in the city of St. Louis, on the 29th day of January, 1880, by delivering a copy of the said writ and petition, as furnished by the clerk, to George M. Forster, agent of the United States Mercantile Reporting Agency, who was in its business office and had charge thereof at the time of said service. The president or other chief officer could not be found in the city of St. Louis.”

The defendant pleaded to the jurisdiction of the court as follows: “And now comes defendant, and entering its appearance solely for the purposes of this plea, denies that the court has or can have any jurisdiction of defendant in this cause, and avers that defendant is a corporation incorporated under the laws of the state of New York; that defendant's chief office is not in this State; that defendant is not a resident corporation of this State, but is a foreign corporation, having its chief office out of this State; and that defendant has not any office in this State, or agent in charge of any office in this State, nor has it any agent in this State, nor has it ever had any agent or office in this State. And further, that the facts set forth in the amended return of the sheriff upon the writ of summons herein are not true. Wherefore defendant prays that this plea may be allowed and the cause dismissed for want of jurisdiction.” Plaintiff filed a motion to strike out this plea, but the motion was denied.

I.

Section 3489, (R. S. 1879,) which comes under discussion in the present instance, is as follows: “A summons shall be executed, except as otherwise provided by law, either: First, by reading the writ to defendant and delivering to him a copy of the petition; or, Second, by delivering to him a copy of the petition and writ; or, third, by leaving a copy of the petition and writ at his usual place of abode, with some person of his family over the age of fifteen years; (or, Fourth, where the defendant is a corporation or joint-stock company, organized under the laws of any other state or country, and having an office or doing business in this State, by delivering a copy of the writ and petition to any officer or agent of such corporation or company, in charge of any office or place of business; or if it have no office or place of business, then to any officer, agent or employe in any county where such service may be obtained;) or, Fifth, where there are several defendants, by delivering to the defendant who shall be first summoned a copy of the petition and writ, and to such as shall be subsequently summoned, a copy of the writ; or by leaving such copy at the usual place of abode of the defendant with some person of his family over the age of fifteen years,” etc.

I have included in brackets the fourth subdivision of that section, to which special attention is requisite, as upon that plaintiff bottoms his claim that the service herein is valid. Apart from that subdivision, which appears for the first time in the present Revision, the section, save an amendment which struck out the word white as it stood in the General Statutes of 1865, is the same as it was in 1855. 2 R. S., 1223, § 7. Section 7, just cited, evidently provided only for service on individuals. The effect of such service upon individuals had been previously defined and declared in section 5 of the same chapter. 2 R. S. 1855, p. 1222. This section corresponds with section 3487 of the present Revision, and provides that ‘every defendant served with the summons fifteen days before the return day thereof, shall be bound to appear at the return term of the writ; and if such summons be served less than fifteen days, he shall be bound to appear at the term next after the return term of such writ.” Section...