Pollock v. Carolina Interstate Building & Loan Ass'n
| Decision Date | 27 November 1896 |
| Citation | 25 S.E. 977,48 S.C. 65 |
| Parties | POLLOCK et al. v. CAROLINA INTERSTATE BUILDING & LOAN ASS'N et al. |
| Court | South Carolina Supreme Court |
Appeals from common pleas circuit court of Chesterfield county; R. C Watts, Judge.
Action by W. P. Pollock and another, as assignee of Mrs. R. J Pollock, against the Carolina Interstate Building & Loan Association and another. From orders in favor of plaintiffs defendants appeal. Affirmed.
W. F Stevenson and R. T. Caston, for appellants.
Edward McIver, Pollock & Pollock, and E. J. Kennedy, for respondents.
This was an action begun on the 29th day of July, 1895, by the service in Cheraw of the summons and complaint on A. G. Pollock, who, it is contended, was the resident agent of the Carolina Interstate Building & Loan Association of Wilmington, N. C., and by service on the same day on the Bank of Cheraw. The Bank of Cheraw demurred to the complaint, and the building and loan association, appearing only for that purpose, served a notice on the attorneys for the plaintiffs of a motion to set aside the service of the summons and complaint and dismiss the proceedings as to it, on the ground that it had not been brought under the jurisdiction of the court by proper service. At the September term, 1895, of the court of common pleas held for Chesterfield county, this motion was heard by his honor Judge Ernest Gary, and refused. Notice of intention to appeal was duly served, but, under agreement of counsel, it was agreed that pending this appeal the building and loan association might "make and argue any demands, oral or written, which it may be advised to make, at the February term for 1896 of this [circuit] court, without prejudice to any of its rights under said appeal." At the February term, 1896, both the Bank of Cheraw and the building and loan association interposed and argued demurrers and motions to dismiss the complaint. The demurrers raised the question of the alleged misjoinder of two distinct causes of action, and the motions to dismiss the complaint were made on the ground that it did not state facts sufficient to constitute a cause of action, in that the plaintiffs, as purchasers of land covered by mortgage, could not plead usury in the terms of the mortgage; and further, by the Bank of Cheraw, that the complaint showed that no cause of action could arise against it until the cause of action against its co-defendant was adjudicated. His honor Judge Watts overruled the demurrers and motions to dismiss; holding that the plaintiffs could not plead usury, not being parties to the original contract, but that there were sufficient allegations in the complaint to show, if true, that the building and loan association had collected too much money from the plaintiffs, under the contract made by said association with Mrs. R. J. Pollock, the grantor of plaintiffs, when the contract was properly construed and the debt properly computed, and that the complaint charged that the Bank of Cheraw was a participant in such collection. Both defendants appealed. By consent of counsel, all the appeals growing out of this case were heard together.
The appeal from the order of his honor Judge Ernest Gary is brought upon the following exceptions: (1) Because the court erred in holding that the court had obtained jurisdiction of the Carolina Interstate Building & Loan Association by mere service on A. G. Pollock. (2) Because the court erred in holding that the agreement constituting A. G. Pollock agent to solicit stock was a valid agreement made by said association, and constituted him such a resident agent as could be served. (3) Because the court erred in holding that said so-called agreement had not terminated when the association ceased to issue stock. (4) Because the court erred in construing the by-laws of said association to mean that A. G. Pollock, as treasurer of the local branch association, was agent of the said defendant association, in the face of section 5 of article 9 of said by-laws. (5) Because the appointment of a receiver by the court of North Carolina for said corporation, and the taking possession of the assets of said corporation by said receiver under said order, terminated the right of A. G. Pollock to act as said agent of the corporation, even if he had been such agent, and the court erred in not so holding. (6) Because the court erred in holding that any agent of the said corporation (being a foreign corporation) could be served, if he resided in this state, and the service would be legal. (7) Because the court erred in holding that service could be made here on a foreign corporation, through any resident agent of the same, without the attachment of any property. (8) Because the court erred in holding that A. G. Pollock was the resident agent of the said corporation at the date of the service of the summons. (9) Because the court erred in holding that the said defendant could be served here, although it had no property here in this state, and the cause of action did not arise in this state, without serving the agent specially appointed by said defendant to accept service (10) Because it does not appear that the court has acquired jurisdiction of the defendant corporation, or that plaintiffs have a right to sue said corporation in this state, and the court erred in not so holding. (11) It does not appear that the plaintiffs are residents of this state, or that the cause of action arose in this state, and the court erred in not dismissing the action for want of jurisdiction. (12) Because the court erred in holding that A. G. Pollock had been properly appointed local agent of said association; and said appointment was signed by E. S. Tennant, notary, and he had no authority to appoint any agent, as appears from article 7, § 1, of the articles of incorporation of said corporation.
The grounds of appeal from the order of Judge Watts, on behalf of the building and loan association, are as follows: (1) Because the circuit judge erred in holding that the complaint in this action could be construed to be for money wrongfully collected, in violation of a contract of the Carolina Interstate Building & Loan Association with R. J. Pollock, not collected as usurious interest, when plaintiffs expressly alleged that all the money claimed by them to have been wrongfully collected was collected as usurious interest. (2) Because the court erred in holding that the complaint contained sufficient allegations as to this defendant to show, if true, that more money had been collected by the Carolina Interstate Building & Loan Association than was due on its contract, even if the plea of usury was not allowed. (3) Because the court erred in holding that plaintiffs, in their complaint, stated, or attempted to state, any other cause of action against this defendant than one to recover usurious interest paid, and the penalty therefor, and in not dismissing the complaint when he held that these plaintiffs could not plead or set up usury. (4) Because no cause of action was stated as to this defendant, and the court erred in not dismissing the complaint on its motion on that ground. (5) Because the court erred in not holding that that complaint showed on its face that the said building and loan association had accepted less than was actually due it under its contract, and in not dismissing the complaint on that ground. (6) Because the court erred in holding that the two causes of action attempted to be stated in the complaint were properly joined. (7) Because the court erred in holding that both of the alleged causes of action affected all the parties to the said action, or all the defendants.
On behalf of the Bank of Cheraw, the following grounds of appeal from the order were taken: (1) The circuit judge erred in holding that the alleged cause of action against its co-defendant and that against this defendant were properly joined in the complaint. (2) He erred in not holding that it appeared from the face of the complaint that no cause of action arose against this defendant until the liability of its co-defendant, the plaintiff, had been first "determined and adjusted." (3) He erred in holding that as the complaint charges the Bank of Cheraw with being a participant, "to a certain extent," in the collection of the money received by the co-defendant, it states a present cause of action against it. (4) He erred in holding that the complaint stated a cause of action against this defendant, when no legal obligation is alleged, no demand made, or refusal on its part, and no obligation in the complaint that this defendant was not ready and able to respond to any liability it had assumed, whenever same accrued. (5) Having eliminated the question of usury from the case, he erred in not holding that the complaint does not state any liability on the part of the Carolina Interstate Building & Loan Association to the plaintiffs, and consequently could allege no cause of action against this defendant. (6) He erred in refusing to sustain the demands of this defendant, and in not dismissing the complaint.
The appeal from Judge Gary's order raises substantially two questions: (1) Can the court of common pleas acquire jurisdiction of a foreign corporation without attachment? (2) Was the service upon the person of A. G. Pollock a valid service upon the Carolina Interstate Building & Loan Association? We will discuss these questions in their order.
Can jurisdiction be obtained over a foreign corporation without attachment? Section 155 of the Code of Civil Procedure provides for service against a corporation by delivering a copy of the summons "to the president or other heads of the corporation, secretary, cashier, treasurer, a director or agent thereof." The second paragraph thereof...
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