Mills v. Wagner

Decision Date11 January 1909
Docket Number13,725
Citation94 Miss. 233,47 So. 899
CourtMississippi Supreme Court
PartiesSAXONY MILLS v. JOHN H. WAGNER ET AL

FROM the circuit court of, second district, Yalobusha county, HON SAMUEL C. COOK, Judge.

Wagner and others, copartners, doing business under the firm name Wagner & Company, appellees, were plaintiffs in the court below; the Saxony Mills, appellant, was defendant there. From a judgment in plaintiff's favor defendant appealed to the supreme court.

The opinion of the court states the facts.

Reversed and remanded.

Kimmons & Kimmons, for appellant.

No jurisdiction of the appellant was ever acquired, hence the judgment against appellant, and on which garnishment was issued, is void. Code 1892, § 133, fixes the jurisdiction of the court in attachment suits. The writ must be returnable to the "court of a justice of the peace of any district, in cases within his jurisdiction, in which the defendant or property or debts of the defendant may be found." The appellant was a nonresident of the state and had no property or business interests or debts owing it in Yalobusha county. The return of the constable shows that appellant was "not found" in the district. The service upon Reynolds, traveling salesman of appellant, could not give jurisdiction. The effort of Wagner & Company to create an indebtedness by depositing money in a local bank to the credit of the appellant, and obtain jurisdiction thereby cannot be countenanced. By an unbroken line of decisions, it is held that when a litigant seeks by fraudulent methods to acquire jurisdiction, his suit must fail. Ball v Sledge, 82 Miss. 749, 35 So. 214; Fenn v. Harrington, 54 Miss. 733; Griffin v. McDaniel, 63 Miss. 121; Ross v. Railroad Co., 61 Miss. 12.

In the cases above cited this court held that an honest belief on plaintiff's part that the amount in controversy was within the jurisdiction of the court, determined the jurisdiction; but the court also held, in each of the cases, that any effort on the part of plaintiff to evade jurisdiction of the court was fatal. And inasmuch as it was the evident purpose of the appellees, in the case at bar, by means of a subterfuge, to create conditions which would give the justice of the peace jurisdiction, the judgment of the court below must be reversed.

The service of process upon Reynolds, traveling salesman of appellant, conferred no jurisdiction, because it is undisputed that appellant was a foreign trading corporation having no office or place of business in the state, and employing Reynolds solely as a soliciting agent whose orders were sent to the home office of appellant in Missouri to be there filled by shipments directly to the purchasers. Under Laws 1894, ch. 61, p. 49, applicable to this case, appellant was not doing business" within the state of Mississippi, and the service of process upon Reynolds amounted to nothing in so far as any binding effect upon appellant was concerned. St. Clair v. Cox, 106 U.S. 350, 27 L.Ed. 222; Insurance Co. v. Mansfield, 45 Miss. 311; Insurance Co. v. Holmes, 75 Miss. 390, 23 So. 183; Berger v. Pennsylvania Railroad Co., 9 L. R. A. (N. S.) 1214, note; Maxwell v. Edens, 65 Mo.App. 439; Wilcox Supply Co. v. Masher, 114 Mich. 64; Rock Island Plow Co. v. Peterson, 93 Minn. 356.

Certainly a mere soliciting agent employed by a foreign corporation which is not "doing business" in the state, cannot be held to be an "agent" of the corporation, within Laws 1894, ch. 61, p. 49. The word "agent," does not mean every man employed by the corporation, but refers to its principal officers exercising a controlling authority over its business. Lake Shore, etc., Railroad Co. v. Hunt, 39 Mich. 469; Colt v. Sutton, 102 Mich. 334.

I. T. Blount, for appellees.

A foreign corporation may be sued in this state, as an individual, when an agent of the corporation is found and served with appropriate process within the proper jurisdiction. Laws 1894, ch. 61, p. 49; Code 1892, § 3433; Pullman Car Co. v. Lawrence, 74 Miss. 789, 22 So. 53; Illinois, etc., R. Co. v. Sanford, 75 Miss. 868, 23 So. 355; Georgia Home Ins. Co. v. Holmes, 75 Miss. 390, 23 So. 183.

Aside from the service of process upon Reynolds, the writ of garnishment, served upon the Bank of Water Valley, gave the court jurisdiction inasmuch as the bank acknowledged having in its hands effects belonging to the Saxony Mills.

Our lawmakers have realized and recognized the necessity of requiring foreign corporations doing business in this state through agents here to submit to the jurisdiction of our state courts. Nowhere in our statutes is it required that a foreign corporation shall have a place of business here. The statute law relates "to the method of acquiring jurisdiction over such corporations here and holding them to answer here for the purposes of suit, judgment, executions, etc." Illinois, etc., R. Co. v. Sanford, supra.

OPINION

FLETCHER, J.

The appellant, a nonresident corporation, was sued in 1905 by the appellees in the court of Justice Mauldin at Water Valley for damages on account of a shipment of flour. The suit was by attachment, and in order that jurisdiction should attach it was necessary, under section 133 of the Annotated Code of 1892, that the defendant company "be found" in the justice's district or have property or debts in such district. It appears that Wagner & Co. were indebted to appellant in the sum of $ 832.50, and, for the evident purpose of conferring upon the justice of the peace jurisdiction of the attachment suit, Wagner & Co. deposited this sum of money in the Bank of Water Valley to the credit of the Saxony Mills, and thereafter sued out the attachment, alleging that the Bank of Water Valley was indebted to the Saxony Mills. The bank answered the writ of garnishment, stating that Wagner & Co. had made this deposit, which was still in the possession of the bank, but that the Saxony Mills repudiated the transaction, disclaimed any ownership of the fund, and declined to recognize the deposit. In addition to this procedure, the summons in attachment was served upon one Reynolds, a resident citizen of Water Valley, who was at the time a traveling salesman in the employ of the Saxony Mills. Reynolds seems to have accepted service and acknowledged that he was the agent of the appellant, and the officer so stated in his return. The appellant entered no appearance in the case, and judgment was taken in favor of Wagner & Co. as by default for the sum of $ 150, and the money in the bank was subjected to the payment of the judgment. It appears, however, that this fund was never so applied, but seems to have been paid to appellant. However that may be, it appears that in September, 1906, the judgment was unsatisfied, and upon suitable garnishment proceedings a debt due appellant by the Newburger Mercantile Company was sought to be subjected to the payment of the judgment. The sole defense interposed by the Saxony Mills is that the...

To continue reading

Request your trial
37 cases
  • Morrison v. Guaranty Mortgage & Trust Co
    • United States
    • Mississippi Supreme Court
    • 9 Diciembre 1940
    ... ... v ... Haygood, 108 Miss. 755, 67 So. 211; Peterman Const ... & Supply Co. v. Blumenfield, 156 Miss. 55, 125 So. 548; ... Case v. Mills Novelty Co., 193 So. 625, 187 Miss. 673, 126 ... A.L.R. 1102 ... Appellants ... take the position that the cases of Dodds v. Pyramid ... Inspection of property by inspectors was not "doing ... business" within the purview of the statutes ... Saxony ... Mills v. Wagner & Co., 94 Miss. 233, 47 So. 899; ... Penn. C. Co. v. McKeever, 93 A. D. 303, 87 N.Y.Supp ... 869; Vaughan Machine Co. v. Lighthouse, 64 A. D ... ...
  • Equitable Life Assur. Soc. of United States v. Gex' Estate
    • United States
    • Mississippi Supreme Court
    • 27 Febrero 1939
    ...Ins. Co. v. Gilmer, 146 Miss. 22, 111 So. 741; National Surety Co. v. Board of Supervisors, 120 Miss. 706, 83 So. 8; Saxony Mills v. Waggoner, 94 Miss. 73, 47 So. 899. J. Gex, Jr., of Bay St. Louis, and Green, Green & Jackson, for appellees. This court will keep in mind that citizens, espec......
  • C. I. T. Corp. v. Stuart
    • United States
    • Mississippi Supreme Court
    • 13 Marzo 1939
    ... ... "doing business" in that state within the meaning ... of the statute under consideration ... 12 R ... C. L. 52; Saxony Mills v. Wagner & Co., 94 Miss. 233, 47 So ... 899; Mershon & Co. v. Pottsville Lbr. Co., 40 A. 1019; Item ... Co. v. Shipp, 140 Miss. 699, 106 So. 437; ... ...
  • Alabama Power Co. v. Jackson
    • United States
    • Mississippi Supreme Court
    • 14 Marzo 1938
    ... ... C. C. & F. R. Smith, ... Inc., 165 Miss. 53, 145 So. 638; Walters v. Curtiss ... Candy Co., 159 So. 560, 172 Miss. 187; Saxony Mills ... v. Wagner & Co., 94 Miss. 233, 47 So. 899; Goldey v ... Morning News, 156 U.S. 518, 39 L.Ed. 517; Brown v ... Cuba-American Jockey Club of ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT