Mooney v. Buford & George Mfg. Co.

• Citation: 72 F. 32
• Decision Date: 08 February 1896
• Docket Number: 250.
• Parties: MOONEY et al. v. BUFORD & GEORGE MANUF'G CO. et al.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

72 F. 32

MOONEY et al. v. BUFORD & GEORGE MANUF'G CO. et al.

No. 250.

United States Court of Appeals, Seventh Circuit.

February 8, 1896

This is an action of attachment and garnishment, commenced in the superior court of Marion county, and transferred thence to the court below upon the petition of the Buford Manufacturing Company, the alleged debtor in the case. The plaintiffs in error, who brought the action, are residents and citizens of Indiana, doing business under the firm name of W. W. Mooney &amp Sons. They alleged, as their cause of action, a contract liability of the Buford & George Manufacturing Company, a corporation of Missouri, located and doing business at Kansas City, and that the London Assurance Corporation and the Queen Insurance Company, each of which is a foreign corporation authorized to do and doing business in Indiana, are each indebted to the Buford & George Manufacturing Company in a sum exceeding their demand. No question is made of the sufficiency of the complaint, or of the affidavit in attachment and garnishment. A summons in the ordinary form was issued and served, as shown by affidavit, upon the Buford & George Manufacturing Company by delivering a copy, and by reading the same, to the secretary and president of the company, at Kansas City, on the 8th of August, 1894. The ordinary process in garnishment was issued and served July 26, 1894, upon the London Assurance Corporation, by reading to its agents, named, and upon the Queen Insurance Company by reading to a solicitor, named, of its agents, named, in Marion county, Ind. After the transfer of the case, the service upon the Queen Insurance Company was set aside, on motion. The other defendants, the Buford & George Manufacturing Company and the London Assurance Corporation each filed a plea to the jurisdiction, to the effect that the liability of the latter company to the former grew out of insurance written by the latter in Missouri upon property of the former in Missouri, and in no sense out of any transaction had or contract made in Indiana. The court overruled demurrers to these pleas, and, the plaintiff choosing to abide the ruling, ordered the cause abated and stricken from the docket. Error is assigned upon each ruling.

The following statutory provisions bear more or less directly upon the question; the numbers given of sections referring to Burns' Indiana Statutes, Revision of 1894, and, in parenthesis, to the Revision of 1881: Section 310 (309) 'When a corporation, company, or individual has an office or agency in any county for the transaction of business, any action growing out of, or connected with the business of such office may be brought in the county where the office or agency is located, at the option of the plaintiff, as though the principal resided therein; and service upon any agent or clerk employed in the office or agency shall be sufficient,' etc. This has been held to be applicable when the defendants are nonresidents of the state. Rauber v. Whitney, 125 Ind. 216, 25 N.E. 186. Section 318 (316) provides that process against a domestic or foreign corporation may be served upon certain officers or agents: 'Provided, however, that process shall not be served upon any such person, officer, or agent when he is plaintiff in the suit; but in such case process shall be served upon some other such person, officer, or agent of the corporation than such plaintiff; and in case the defendant be a foreign corporation, having no such person, officer, or agent, resident in the state, service may be made in the same manner as against other non-residents. ' Section 320 (318) provides for notice by publication in a variety of cases, and, among them, 'where the defendant is a non-resident of the state and * * * the object of the action is * * * to enforce the collection of any demand by proceedings in garnishment or attachment. ' Section 321 (319): 'When the defendant is a non-resident, personal service of the summons out of the state is equivalent to publication. ' Sections 970 (958), 971 (959), and 972 (960) protect personal earnings or wages, in certain cases, from seizure in any action of attachment, garnishment, or supplementary proceedings. By sections 3453 (3022) and 3454 (3023), enacted in 1852, agents of foreign corporations were required, before entering upon the duties of their agency in this state, to deposit in the clerk's office of the county where they proposed doing business an order or resolution 'authorizing citizens or residents of this state having a claim or demand against such corporation arising out of any transaction in this state with such agents, to sue for and maintain an action in respect to the same in any court of this state of competent jurisdiction, and further authorizing service of process in such action on such agent to be valid service on such corporation, and that such service shall authorize judgment and all other proceedings against such corporation. ' By the act of 1877, Sec. 4915 (3765), it is required that authority be given the agent of a foreign insurance company 'to acknowledge service of process for and in behalf of such company, consenting that service of process upon such agent shall be taken and held to be as valid as if served upon the company according to the laws of this state, and waiving all claim of error by reason of such service. ' The last enactment on the subject, passed in 1883, provides: 4916 (1): 'That it shall not be lawful for any insurance company chartered, organized or incorporated in any other state or nation to do business in the state of Indiana, until such company shall file with the auditor of state a certified copy of a vote or resolution of the board of directors of such company consenting that service of process in any suit against such company may be served upon any authorized agent of such company in the state of Indiana, with like effect as if such company was chartered, organized or incorporated in the state of Indiana, and agreeing that any process served upon such agent shall be of the same legal force and validity as if served upon said company, and agreeing that such service may be so made, with such effect, while any liability remains outstanding against such company in this state, and agreeing, further, that if at any time there shall be no authorized agent of such company in the county where any suit shall be brought, service may thereafter be made upon the auditor of the state of Indiana, with such effect as if made upon an authorized agent of such company.' 4917 (2): 'Service of process in any action against any insurance company not having an agent in that county where any suit shall be brought, shall be made upon the auditor of state by duplicate copy, and such service shall be deemed in all respects the same as if such company was chartered, organized or incorporated in the state of Indiana.'

The argument for the defendants in error is based upon three propositions, and authorities cited in support of them, as follows: (1) 'Both the defendant and the insurance company, the garnishee, were nonresidents of Indiana, and the court had no jurisdiction of the person of the defendant; and the debt from the insurance company to defendant was not contracted or payable in Indiana. Under this state of facts, the debt to defendant was not attached in Indiana, and therefore the court acquired no jurisdiction. ' Everett v. Walker (Colo. App.) 36 P. 616; Railroad Co. v. Maggard (Colo. App.) 39 P. 985; Williams v. Ingersoll, 89 N.Y. 508; Douglass v. Insurance Co., 138 N.Y. 209, 33 N.E. 938; Renier v. Hurlbut, 81 Wis. 24, 50 N.W. 783; Railway Co. v. Sharitt, 43 Kan. 375, 23 P. 430; Bowen v. Pope, 125 Ill. 28, 17 N.E. 64; Haggerty v. Ward, 25 Tex. 144; Insurance Co. v. Hettler (Neb.) 56 N.W. 711; Railroad Co. v. Dooley, 78 Ala. 524; Lawrence v. Smith, 45 N.H. 533; Sawyer v. Thompson, 24 N.H. 510; Green v. Bank, 25 Conn. 452; Myer v. Insurance Co., 40 Md. 595; Straus v. Glycerine Co., 46 Hun. 216; Central Trust Co. v. Chattanooga, R. & C.R. Co., 68 F. 685. (2) 'There is no statute of Indiana authorizing the service of process upon foreign insurance companies, except in transactions arising out of the business of such companies had with its agents in that state. ' Rev. St. 1894, Secs. 310, 315, 3453, 4915, 4916 (Rev. St. 1881, Secs. 309, 313, 3022, 3765); Insurance Co. v. Black, 80 Ind. 513; Finch v. Insurance Co., 87 Ind. 302; Rehm v. Saving Inst., 125 Ind. 138, 25 N.E. 173; Milwaukee Bridge & Iron Works v. Wayne County Circuit Judge, 73 Mich. 155, 41 N.W. 215; St. Clair v. Cox, 106 U.S. 350, 1 Sup.Ct. 354. (3) 'The defendant could not have maintained a suit against the insurance company on the policy of insurance in the courts of Indiana.' 2 Beach, Priv.Corp. § 896; 2 Mor.Priv.Corp. §§ 976, 977; Insurance Co. v. French, 18 How. 404; Smith v. Insurance Co., 14 Allen, 336; Central Railroad & Banking Co. v. Georgia Const. & Invest. Co., 32 S.C. 319, 11 S.E. 192; Insurance Co. v. Black, 80 Ind. 513.

Per contra, the plaintiffs in error have cited, with others, the following: 8 Am.& Eng.Enc.Law, p. 1131; Neufelder v Insurance Co. (Wash.) 33 P. 870; Dittenhoefer v. Clothing Co. (Wash.) 30 P. 660; Harvey v. Railway Co. (Minn.) 52 N.W. 905; Glover v. Wells, 40 Ill.App. 350; Railroad Co. v. Crane, 102 Ill. 249; McAllister v. Insurance Co., 28 Mo. 214; Connor v. Insurance Co., 28 F. 549; Newland v. Circuit Judge, 85 Mich. 151, 48 N.W. 544; Carson v. Railway Co., 88 Tenn. 646, 13 S.W. 588; Moshassuck Felt Mill v. Blanding, 17 R.I. 297, 21 A. 538; Railroad Co. v. Tyson, 48 Ga. 351; Bank v. Huntington, 129 Mass. 444; Cousens v. Lovejoy, 81 Me. 467, 17 A. 495; Roche v. Association, 2 Ill.App. 360; German-American Ins. Co. v. Chippewa Circuit Judge (Mich.) 63 N.W. 531; Burns v. Railroad Co., 113...