Meixell v. American Motor Car Sales Company

• Decision Date: 27 January 1914
• Docket Number: 22,510
• Citation: 103 N.E. 1071,181 Ind. 153
• Parties: Meixell et al. v. American Motor Car Sales Company
• Court: Indiana Supreme Court

103 N.E. 1071

181 Ind. 153

Meixell et al. v. American Motor Car Sales Company

No. 22,510

Supreme Court of Indiana

January 27, 1914

From Superior Court of Marion County (81,682); Clarence E. Weir Judge.

Action by Benjamin Meixell and another against the American Motor Car Sales Company. From a judgment for defendant, the plaintiffs appeal. (Transferred from the Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.)

Reversed.

Frederick E. Matson, Edward E. Gates and James A. Ross, for appellants.

Edgar A. Brown, James E. Kepperley and J. Olias Vanier, for appellee.

OPINION

Myers, J.

Appellants sued appellee June 17, 1907, for an alleged breach of a contract executed in Indiana. Summons was served by the sheriff of Marion County on one Willys, as the agent appointed by appellee, a nonresident corporation on whom service of summons might be made. Appellee pleaded to the jurisdiction by plea in abatement. A demurrer for want of facts to abate the action was overruled; appellants declined to plead further and judgment was rendered abating the action. The ruling on the demurrer is the sole question presented.

The question presented by the plea is, Can a foreign corporation which, on coming into this State to transact business, has complied with the statutes of this State, under §§ 4086, 4089 Burns 1908, Acts 1907 p. 286, upon discontinuing that business and removing all its property from the State and having no agency, agent or representative of any kind, or property, moneys or credits in the State, revoke the agency created on its entry into the State, by filing such attempted revocation in the office of the Secretary of State before suit is brought, when the agent has removed from the State, and service is made on him while in the State, not on any business of the corporation, he being at the time neither an officer nor stockholder in the corporation, and having no connection therewith, where also there has been no attempt at substitution of another agent to receive service, where the cause of action arises out of a contract made in this State, with the corporation whilst it was engaged in the exercise of its franchises and the transaction of business in this State, under its agreement with the State, so as to defeat jurisdiction of such personal action?

We can look only to the pleading itself, as a demurrer to a plea in abatement does not reach the complaint, and must be considered independently of the allegations of the complaint. If fraud in the attempted withdrawal of the agent was material, it should have been replied, and an issue of fact presented. State v. Roberts (1906), 166 Ind. 585, 77 N.E. 1093; Rush v. Foos Mfg. Co. (1898), 20 Ind.App. 515, 51 N.E. 143. As a plea in abatement requires the utmost certainty and particularity leaving nothing to be supplied by intendment and no supposable answer unmet, we are bound to assume that the cause of action grew out of the transaction of business by appellee in Indiana. Nor can we assume from the fact of the statement in the affidavit filed with the Secretary of State as to withdrawal, that appellee had no money, property, credits or effects, belonging to or due it in the State, if that is material in the case. Brown-Ketcham Iron Works v. George B. Swift Co. (1913), 53 Ind.App. 630, 100 N.E. 584, 860.

It is the insistence of appellant that §§ 4099, 4100 Burns 1908, §§ 3023, 3024 R. S. 1881, are in force, and as the plea does not show that § 4099 was complied with, and that the party served was not the party designated as agent to receive service, it fails to anticipate and exclude all supposable matter, and is defective and demurrable on that ground. It is not necessary that we determine that question, for the reason that it is averred that "when said pretended service was had upon him (Willys) he was neither a general nor special agent for said defendant corporation, that no property, moneys, credits or effects belonging to or due to the defendant * * * were to be found, or were in fact in said Marion County, Indiana, * * * that no summons in this case has been served on any other person who was authorized by law or by said defendant corporation to accept service for said defendant." See, however, Mutual Mfg. Co. v. Alpaugh (1910), 174 Ind. 381, 91 N.E. 504, 92 N.E. 113. Searching to find the intendment of the legislature in the enactment of 1907, we find that there were then in force, statutes which authorized service on foreign as well as domestic corporations having an office or agency in any county for the transaction of business, by service on any agent or clerk employed in the office or agency, as to any act growing out of, or connected with the business of such office or agency. § 311 Burns 1908, § 309 R. S. 1881. Rush v. Foos Mfg. Co., supra. By § 316 Burns 1908, § 313 R. S. 1881, action might be brought against foreign corporations in any county where any property, moneys, credits or effects belonging to or due to the corporation may be found. By § 319 Burns 1908, Acts 1893 p. 152, providing for the manner of service on a domestic or foreign corporation, in its last clause, it is provided in case of foreign corporations, that if there were no such person, officer or agent, resident in the State, service may be made in the same manner as against other nonresidents. Under this section, it has been held that service upon the agent of a foreign corporation was sufficient. Memphis, etc., Co. v. Pikey (1895), 142 Ind. 304, 40 N.E. 527; Rush v. Foos Mfg. Co., supra. Thus the statutes then in force, provided for all cases where a foreign corporation had an office or agency, or agent in the State, or was transacting business in the State, or its president, presiding officer, etc., * * * clerk, general or special agent was in the State. From the very existence of these facts, service on foreign corporations was possible, hence if the conditions continue, there was no necessity for another statute to cover those cases. It is not suggested that either of the foregoing sections was repealed by the act of 1907. The statute could therefore have had no object except to reach cases which the existing statutes did not reach, by the provisions for service on the designated officers or agents in the order named in § 319, supra, and as to agents generally in the other sections, as to causes of action arising out of business done in the State. The statute of 1907 seems therefore to have had two objects, one to fix the contractual status of foreign corporations as to service of process which should confer jurisdiction on the local courts as to business transacted in this State, and the other to apply to conditions which the existing statutes did not reach, by designating a particular person on whom service might be made, who would be outside the class of persons, and conditions, embraced within the provisions of existing statutes. That this is true is evinced by the subsequent legislation of 1913 (Acts 1913 p. 60), further strengthening the conditions by requiring the authorization of service on the Auditor of State who could always be found in the jurisdiction. True, in that act it is provided that such service may be made "while any liability remains outstanding in this State against such corporation." It cannot well be questioned that the act of 1907 discloses the same intention, if for no other reason, than the spirit and intent of the act to apply to cases where it would have been otherwise unnecessary, in addition to the provisions of § 4089 Burns 1908, Acts 1907 p. 286. That section requires that foreign corporations "shall constantly keep on file in the office of the secretary of state" an affidavit showing the location of its principal place of business, and office in the State of Indiana, and the name of some person who may be found at such office for the purpose of accepting service in all suits that may be commenced against it, and as often as such corporation shall change its location, or its agent or attorney in fact for receiving and accepting service, a new affidavit shall be filed, etc. It is scarcely necessary to point out that the permission within constitutional limits to exercise its franchise is a sufficient contractual consideration for the agreement in regard to service on it. State, ex rel. v. Insurance Co. (1888), 115 Ind. 257, 17 N.E. 574; Old Wayne Mut. Life Assn. v. McDonough (1905), 164 Ind. 321, 73 N.E. 703; Old Wayne Mut. Life Assn. v. McDonough (1907), 204 U.S. 8, 27 S.Ct. 236, 51 L.Ed. 345; Peoples, etc., Assn. v. Markley (1901), 27 Ind.App. 128, 60 N.E. 1013; Moore v. Mutual, etc., Assn. (1901), 129 N.C. 31, 39 S.E. 637; Groel v. United Electric Co. (1905), 69 N.J. Eq. 397, 60 A. 822. As a remedial statute, it will be construed to include cases within the reason, even if outside the letter of the statute. Traudt v. Hagerman (1901), 27 Ind.App. 150, 60 N.E. 1011. It necessarily follows that such agreement is not for the benefit of the State, but of its citizens or residents who have business here with corporations, and enter into their contracts. Hunter v. Mutual, etc., Ins. Co. (1910), 218 U.S. 573, 31 S.Ct. 127, 54 L.Ed. 1155, 30 L. R. A. (N. S.) 686. It therefore becomes a power coupled with an interest, and is irrevocable so long as an interest in the subject of the power continues. Groel v. United Electric Co., supra; Hunter v. Mutual, etc., Ins. Co., supra; D'Arcy v. Connecticut Mut. Life Ins. Co. (1902), 108 Tenn. 567, 69 S.W. 768; Germania Ins. Co. v. Ashby (1901), 112 Ky. 303, 65 S.W. 611, 99 Am. St. 295; Moore v. Mutual, etc., Assn., supra.

That the state may punish by fine, for infraction of the agreement, is wholly aside from the interest of the citizens of the State for whose benefit the statute and contract exist (...