Potter v. La Pointe MaCh. Tool Co.

• Citation: 201 Mass. 557,88 N.E. 418
• Parties: POTTER et al. v. LA POINTE MACH. TOOL CO.
• Decision Date: 17 May 1909
• Court: United States State Supreme Judicial Court of Massachusetts

201 Mass. 557

88 N.E. 418

POTTER et al. v. LA POINTE MACH. TOOL CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 17, 1909

COUNSEL

Joslin & Mendum, for appellant.

Henry W. Beal, for appellees.

OPINION

RUGG J.

The single question raised relates to the jurisdiction of the municipal court of the city of Boston. The case comes before us on exceptions to an order overruling the defendant's plea in abatement, as well as by appeal from an order overruling a motion to dismiss. This is proper practice under St. 1906, p. 310, c. 342, which abrogates the rule expounded in Fenton v. Kane, 186 Mass. 136, 71 N.E. 194, and cases there cited. This is an action at law brought in said court by the plaintiffs, copartners having a usual place of business at Boston, in the county of Suffolk, against a foreign corporation, having property and a usual place of business in the county of Middlesex. An attachment of property of the defendant was made in Middlesex county, but service was made at Boston upon the Commissioner of Corporations under St. 1903, p. 443, c. 437, § 58. This section, inter alia, requires every foreign corporation having a place of business in this commonwealth, to appoint the Commissioner of Corporations its attorney, and to agree 'that any lawful process against it which is served on said attorney shall be of the same legal force and validity as if served on it.'

The plaintiff contends that its action is well brought under Rev Laws, c. 167, § 7, cl. 3, which enacts, with exceptions not here material, that if one party is a natural person and the other a corporation other than a city, town or parish, it may sue or be sued in any county, in which the corporation has an established or usual place of business or in which the natural person lives or has a usual place of business. This section, however, only fixes the county of venue. It does not settle the jurisdiction of the respective courts within the county, which is established by other sections of the Revised Laws. See chapter 160, §§ 18, 19, 20, 59; chapter 161, §§ 11, 12; chapter 167, § 2; chapter 181,§ 2; chapter 189, §§ 2, 4; chapter 197, § 10; chapter 200, §§ 3-15; chapter 193, § 22; chapter 191, § 2; chapter 198, §§ 17, 23. It applies to courts of general jurisdiction. Its purpose is not to enlarge the powers of courts of limited jurisdiction. If the construction of this section sought for by the plaintiff is tenable, then the jurisdiction of all police, district and municipal courts for natural persons residing or having places of business within their territorial limits as to all corporations would be bounded only by the confines of the commonwealth. This would be a far more extensive jurisdiction than is possessed where both parties are natural persons as appears from an examination of the statutes last cited. A superficial reading of Rev. Laws, c. 167, § 22, which determines the field of action of original writs issuing out of police, district or municipal courts, might seem at first sight to support the view for which the plaintiff argues. But a reference to its history and the report of the commissioners for the consolidating of the statutes demonstrates its unsoundness. It is clear that Pub. St. 1882, c. 154, §§ 16, 47, and chapter 183, § 5, and chapter 175, §§ 2, 4, authorized writs issuing from any of the few local courts tehrein named to run into another county for service on a defendant only when one of several defendants lived within the district of the court or, in trustee process, when the trustee lived within the district and the defendant in another county, and in actions for the summary recovery of land. This is equally clear when the laws relating to district and police courts were revised and consolidated in 1893. See St. 1893, p. 1114, c. 396, § 17, as amended by St. 1894, p. 445, c. 398, § 2, and St. 1894, p. 484, c. 431, § 2. The report of the 'commissioners for consolidating the public statutes' shows that they intended no change in the pre-existing laws when Rev. Laws, c. 167, § 22, was framed. Although perhaps in the phrasing of section 22 something of lucidity was sacrificed to brevity, yet reading it in the light of these earlier statutes, to which it owes its present composition, it is manifest that the word 'defendant' in line 6 does not stand alone, but is modified by the words in lines 9, 10, and 11 'in an action of summary process under the provisions of chapter one hundred eighty-nine or in an action by the trustee process.' Original writs from police, district and municipal courts therefore run, throughout the county only, for service upon a defendant, and into other counties for attachment of property alone, except that they may also run into other counties for service on a defendant or defendants, where they live, in an action against several defendants, one of whom lives in the county within which the court is located, or in an action of summary process where the land in question is within the county of the court, or in a trustee process where those named as trustee or trustees dwell or have a usual place of business within the county of the court, except that jurisdiction is conferred upon the municipal court of the city of Boston in trustee process if one or more of several trustees live or have their usual place of business in the county of Suffolk. Rev. Laws, c. 189, §§ 2, 4; chapter 181, § 2; chapter 160, § 59; chapter 167, § 22. But for another reason Rev. Laws, c. 167, § 7, does not govern an action like the present. That section refers only to domestic corporations, and has no relation to foreign corporations. This becomes apparent when the history of the section is examined. It was enacted in substance the same as it now appears in 1836 by Rev. St. c. 90, § 16, which was long before any statute existed authorizing suits against foreign corporations. Its purpose as explained in Raymond v. Lowell, 6 Cush. 524-529, 53 Am. Dec. 57, was to fix the domicile of domestic corporations for purposes of suit, it having been held in Taunton & South Boston Turnpike Co. v. Whiting, 9 Mass. 321, that a domestic corporation had no commorancy. There is no indication in the reports of the successive commissioners to revise the statutes of any intent to extend its provisions to foreign corporations. Frequently the word 'corporations' as used in our statutes has been held to apply only to such as have been regularly established under the sovereign authority of this commonwealth, and this is one of those instances. Com. v. Boston, 97 Mass. 555.

The plaintiff further contends that the action is properly brought under that part of Rev. Laws, c. 167, § 2, which provides that municipal courts 'shall have jurisdiction of a transitory action against a defendant who is not an inhabitant of this commonwealth if personal service or an attachment of property is made within the commonwealth; and such action may be brought in any of said courts in the county in which the service or attachment was made' on the ground that the service was made in...