Republic Motor Truck Co. v. Buda Co.

• Court: Supreme Court of Michigan
• Writing for the Court: STEERE
• Citation: 212 Mich. 55,179 N.W. 474
• Decision Date: 13 October 1920
• Parties: REPUBLIC MOTOR TRUCK CO., Inc., v. BUDA CO.

212 Mich. 55
179 N.W. 474

REPUBLIC MOTOR TRUCK CO., Inc.,
v.
BUDA CO.

Supreme Court of Michigan.

Oct. 13, 1920.

Certiorari to Circuit Court, Gratiot County; Fred S. Lamb, Judge.

Action by the Republic Motor Truck Company, Incorporated, against the Buda Company. Defendant's motion to dismiss for want of jurisdiction denied, and defendant brings certiorari. Affirmed.

Argued before MOORE, C. J., and STEERE, BROOKE, FELLOWS, STONE, CLARK, BIRD, and SHARPE, JJ.

[179 N.W. 475]

John T. Mathews, of Ithaca, and Warren, Cady, Ladd & Hill, of Detroit (Dent, Dobyns & Freeman, of Chicago, Ill., of counsel), for appellant.

Lyon & Searl and Searl & Searl, all of St. Johns, for appellee.

STEERE, J.

The purpose of this proceeding is to test the jurisdiction of the court in which the above case was commenced. It comes here on writ of certiorari to the circuit court of Gratiot county, obtained by defendant to review an order of said court denying application to dismiss said action for want of jurisdiction. The Republic Motor Truck Company is a corporation organized under the laws of the state of New York, and authorized to transact business in this state under the terms of our statute upon that subject. It owns and operates a manufacturing plant at Alma, Mich. The Buda Company is a corporation organized under the laws of the state of Illinois, owning and operating a manufacturing plant at the city of Harvey in that state. Plaintiff began this suit on December 30, 1918, by summons served on an officer of defendant company, who was, when served, in Gratiot county, Mich. On January 13, 1919, defendant made a motion in said court, supported by affidavit and accompanied by a bond, to remove the case to the District Court of the United States for the Eastern District of Michigan, Northern Division, plaintiff at this time filing an affidavit in opposition thereto, made by one of its attorneys, stating in part:

‘* * * That said plaintiff was, prior to the time of the commencement of said action, a corporation duly authorized and existing under the laws of the state of New York, and has continuously since said time remained and is now organized as such corporation under the laws of said state of New York, and during all of said time has continuously been and is now a resident and citizen of said state of New York, and during all of said time said plaintiff has not been, and is not now, either a resident or a citizen of said state of Michigan. * * *’

Said motion was heard and denied by the court on that date, January 13, 1919. Plaintiff then, on the same date, filed its declaration. On January 14, 1919, defendant by its counsel filed and served notice of its general appearance in said cause, and on January 27, 1919, plaintiff served a copy of its declaration on defendant's attorney. On January 31, 1919, defendant by its counsel filed and served upon plaintiff's counsel demand for a bill of particulars. On February 15, 1919, plaintiff filed a lengthy amended declaration, comprising some 80 pages of the printed record, stating its cause of action more fully, with certain written contracts between the parties, for breach of which damages are claimed, set out at length in the first two special counts, supplemented by the common counts. Briefly stated, these contracts provided for the manufacture by defendant at its plant in Harvey, Ill., to be there delivered to plaintiff free on board, certain models and quantities of motors for use by said plaintiff in its motor trucks which it was engaged in manufacturing and assembling at Alma, Mich. Said undertaking expressly reserved the right to plaintiff of inspecting said motors at Harvey, Ill., before shipment, the same to be paid for in cash, terms of payment ‘fifteen days net,’ the purchaser to assume all transportation charges of every nature and all loss or damage ‘that may accrue to engines or parts thereof while in transit to or from the purchaser.’ Plaintiff's declaration alleges that its cause of action, based on breach of those contracts, ‘accrued to plaintiff within said county of Gratiot.’ For defendant it is asserted that the contracts provide by their terms for performance by it at Harvey, Ill., and not elsewhere, which by reason of a qualified guaranty of material and workmanship plaintiff denies.

In its demand for a bill of particulars defendant especially requested amplification of plaintiff's allegations respecting the plans of accrual of the cause of action, and a bill of particulars was filed and served by plaintiff on December 17, 1919. On March 3, 1919, defendant filed its plea of the general issue, with notice in part as follows:

‘Now comes the above-named defendant, and demands a trial of the matters set forth in the plaintiff's declaration, subject to and limited by all the provisions of and notices under section 4, chapter 14, and section 12, chapter 14, of the Judicature Act of Michigan for 1915. * * *

‘Please be advised that independent of and antecedent to an issue upon the merits herein, to be raised by the general issue above tendered, the defendant comes, and

‘First. Denies the allegation in the declaration and amended declaration, to the effect that ‘the causes of action asserted herein ‘occurred’ to plaintiff within said county of Gratiot and ‘the causes of action asserted herein accrued to plaintiff within said county of Gratiot.’ And the defendant hereby raises an issue upon such question of fact so denied as a preliminary question to be tried herein. And the defendant gives notice that, upon the coming in of a finding that the said cause of action asserted by plaintiff did not accrue to the plaintiff in the county of Gratiot, and based upon the other facts stated in said declaration and files and records herein, defendant will move the court to dismiss said suit on the ground that this court has no jurisdiction of the parties and subject-matter hereof. This issue will be supported

[179 N.W. 476]

by the files, records, and proceedings herein, and upon proofs to be tendered upon notice hereunder.

‘Second. The defendant comes and denies that...