Reynolds v. Missouri, K.&T. Ry. Co.

• Decision Date: 12 December 1917
• Citation: 117 N.E. 913,228 Mass. 584
• Parties: REYNOLDS v. MISSOURI, K. & T. RY. CO. and Trustees.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

228 Mass. 584

117 N.E. 913

REYNOLDS

v.MISSOURI, K. & T. RY. CO. and Trustees.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 12, 1917.

Exceptions from Superior Court, Suffolk County.

Action by Thomas M. Reynolds against the Missouri, Kansas & Texas Railway Company and its trustees. There was an order striking parts of the answer, and defendant Railway way Company excepts. Exceptions overruled.

Tyler, Corneau & Eames, of Boston, for plaintiff.

J. L. Thorndike and R. G. Dodge, both of Boston, for defendant.

DE COURCY, J.

This is an action by the holder against the maker of certain promissory notes. It was commenced by a writ of trustee process, containing a bill in equity to reach and apply equitable assets attached. The defendant filed a plea to the jurisdiction of the court, alleging that it was incorporated under the laws of Kansas, was not doing business in Massachusetts, and did not have here any place of business or agent to do any business in its behalf. After a hearing the plea was overruled by the superior court; and that decision was affirmed by this court. Reynolds v. Missouri, Kansas & Texas Ry., 224 Mass. 379, 113 N. E. 413.

At a later stage in the proceedings the plaintiff asked for and obtained leave to amend the suit into an action at law, and filed a declaration upon the same promissory notes. The defendant then filed an answer, the first part (which alone is now material) setting up in abatement the same facts it had alleged previously in the plea to the jurisdiction. Before the case came on for trial the court, upon a motion of the plaintiff and after hearing, ordered stricken from the answer the allegations to the effect that defendant had never appointed an agent upon whom service of any process against it might be made in Massachusetts, and did not have any place of business in this state, and was not here engaged in any business, or doing anything else except soliciting persons to travel over its railway, situated in other states. The correctness of this ruling is brought before us by the defendant's first bill of exceptions.

The case came on for trial before another judge without a jury. The defendant requested the judge to rule, in substance, that if it did not make, issue or negotiate in this state any of the promissory notes, it was not subject to the jurisdiction of the court as regards any of them, and the service of process was not due process of law against the defendant in respect thereof according to the constitution of the United States. The judge refused so to rule, and ruled that it was wholly immaterial whether the defendant negotiated made or issued the notes in this state. The only question raised by the defendant's second bill of exceptions is the correctness of this ruling and refusal to rule.

1. It was assumed by the trial judge, and we think rightly, that by the parts of the answer stricken out the defendant intended to raise again the identical issues that had been raised by its plea to the jurisdiction. It had been adjudicated at an earlier stage of the proceedings that the defendant company was doing business within the commonwealth, and that the service of process upon it, in accordance with St. 1913, c. 257 was adequate. That settled the law of the case in the trial court. The defendant was not entitled as of right to a second trial of these issues merely because the pleadings had been changed from a bill in equity to a declaration at law, and issue had been joined on the answer by a general replication. The plea to the jurisdiction attacked the service of the writ; and no new writ was issued or new service made. The amendment of the pleadings did not make the action a new one. The statute authorizing such amendments provides expressly that the court shall retain jurisdiction of ‘the cause as amended.’ R. L. c. 173, § 52. The cause continued the same throughout, with no part of the record expunged. The plaintiff's right to interest from the date of the writ remained. Cormier v. Brock, 212 Mass. 292, 98 N. E. 1038. If the cause of action was not barred by the statute of limitations when the suit was originally brought it would not be barred when the amendment was allowed. Smith v. Butler, 176 Mass. 38, 42, 57 N. E. 322. The question of jurisdiction, settled on the equity side of the court, could not be reopened as matter of right when the case was transferred to the law side. See Gahm v. Wallace, 206 Mass. 39, 91 N. E. 1002. Nor did the plaintiff by filing a replication waive his right to object to a second trial of the issues raised by the plea to the jurisdiction.

The proper practice would have been a joinder of issue by the plaintiff on the plea in abatement, alleging that the question had already been decided and become the law of the case; but the procedure followed (striking out parts of the answer) did not injuriously affect the substantial rights of the defendant. St. 1913, c. 716, § 1. This exception must be overruled.

[10] 2. In deciding the issue raised by the second bill of exceptions, we must consider it settled by the earlier decision that the defendant was in fact doing business in Massachusetts, and that it voluntarily had appointed Geo. E. Marsters, a resident within this commonwealth, to have charge of its business as New England passenger agent, with headquarters in Boston. See 224 Mass. 379, 383, 385, 113 N. E. 413. By thus establishing a domicile of business in this commonwealth, the defendant, under the provision of St. 1913, c. 257, made itself amendable to service of process here in the same manner as a domestic corporation. Proper service having been made, the defendant was brought within our jurisdiction, and became answerable here to this transitory cause of action, which is enforceable wherever the defendant may be found. It is of no legal consequence that the promissory notes sued on were made or negotiated outside of the state. And the argument ab inconvenienti urged on behalf of the defendant is met by one of equal force on the side of the plaintiff. Roberts v. Knights, 7 Allen, 449;...