Ross Cutter & v. Rutherford

• Decision Date: 14 January 1932
• Citation: 161 S.E. 898
• Parties: ROSS CUTTER &. SILO CO., Inc., v. RUTHERFORD.
• Court: Virginia Supreme Court

161 S.E. 898

ROSS CUTTER &.SILO CO., Inc.,

v.RUTHERFORD.

Supreme Court of Appeals of Virginia

Jan. 14, 1932

.

Appeal from Circuit Court, Fauquier County.

Bill in chancery by the Ross Cutter & Silo Company, Inc., against H. L. Rutherford. To review a decree in favor of defendant, plaintiff brings error. On motion to dismiss.

Appeal dismissed, with effect of affirming the judgment.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, and BROWNING, JJ.

Williams & Mullen, of Richmond, and Richards & Richards, of Warrenton, for plaintiff in error.

Burnett Miller, of Culpeper, and C. W. Carter, of Warrenton, for defendant in error.

EPES, J.

On June 7, 1929, the circuit court of Fauquier county, Va., in an action of assumpsit, rendered a personal judgment for $8,209.28, with interest and costs, in favor of H. L. Rutherford against Ross Cutter & Silo Company, Inc.

Process in this action was executed by the sheriff of Clarke county "by delivering a true copy of the within process to William H. Brubaker, agent for the Ross Cutter & Silo Company, Inc, " but Ross Cutter & Silo Company, Inc., did not appear in the case.

On August 1, 1929, Ross Cutter & Silo Company, Inc., filed its bill in chancery in the circuit court of Fauquier county against H. L. Rutherford, which prays that Rutherford be enjoined from enforcing this judgment on the ground that the judgment was null and void for lack of due process of law.

The bill alleged that Ross Cutter & Silo Company, Inc., is a foreign corporation, has not qualified to do business in Virginia; that it is not doing, and has not done, any business in Virginia; and that William H. Brubaker was not an agent of Ross Cutter & Silo Company, Inc. upon whom process against it legally could be served; and that, therefore, the said judgment is null and void.

Rutherford filed an answer, which, in effect, asserts that Ross Cutter & Silo Company, Inc., "was doing business in Virginia within the contemplation of law and that Brubaker was an agent of the corporation upon whom process could be legally served, " and denies that there has been any lack of due process of law.

A preliminary injunction was granted by the court, 'which was subsequently continued in force "until the further order of the court" pending a final determination of the cause.

On February 3, 1930, the cause was heard upon its merits upon testimony, all which was taken ore tenus before the court.

On March 24, 1930, the court entered its decree in this cause denying the injunction and dismissing the bill. From this decree Ross Cutter & Silo Company, Inc., is here appealing.

The assignments of error raise only two points. It is alleged that the court erred (1) in holding that Ross Cutter & Silo Company, Inc., "was doing business in Virginia in such manner as to subject it to the jurisdiction of the courts in Virginia"; and (2) in holding that Brubaker was such an agent of the corporation that service of process upon the corporation could be made by delivery of a copy thereof to him.

Both of these questions rest for their determination upon the evidence introduced before the court; and we are met at the outset by a motion made by the appellee thatthe appeal be dismissed, because the evidence upon which the decree appealed from was entered has not been properly made a part of the record, in that it has not been in any way authenticated or certified by the court. With only the omissions noted below, the transcript certified to this court by the clerk of the trial court reads as follows:

"Virginia:

"In the Circuit Court for Fauquier County.

"Among the Records and Proceedings of said court are the following: [Here follow a copy of the bill and exhibits filed therewith, order awarding preliminary injunction, injunction bond, answer and exhibit filed therewith, and decree entered Oct. 12, 1929, extending the preliminary injunction until Nov. 29, 1929.]

"And on the 29 day of November 1929, the plaintiff introduced A. J. Day on its behalf whose evidence was taken ore tenus before the court and reduced to writing in these words:

"Ross Cutter & Silo Company vs. H. D, Rutherford

"Transcript of evidence taken before Honorable J. R. H. Alexander, Judge of the Circuit Court of Fauquier County, Virginia, at Warrenton, Virginia, November 29, 1929.

[Here follow what purport to be motions made by the defendant to dissolve and by the complainant to enlarge the preliminary injunction, and the testimony given orally by Andrew G. Dey.]

"And on the 30 day of November, 1929, the following decree was entered: [Here follows copy of the decree extending the preliminary injunction until Jan. 27, 1930, and setting the cause for hearing on that day.]

"And on the 27th day of January, 1930, the defendant filed two affidavits in these words: [Here follow the two affidavits.]

"And two decrees were entered thereon, as follows: [Here follow the copies of two decrees entered Jan. 27, 1930, directing the issuance of subpoena duces tecum against Fauquier National Bank and William K. Brubaker.]

"And on the same day another decree was entered in these words: [Here follows decree extending the injunction to February 3, 1930, and setting cause for hearing upon the merits on that day.]

"And on the first day of February, 1930, the two subpoenas sub duces tecum were returned to the court, in the following words: [Here follow the subpoenas and the returns thereon.]

"And on the third day of February, 1930, the defendant in response to said subpoenas filed in the record certain accounts of his transaction with said plaintiff in the following words and figures:

"And introduced J. R. Grigsby and W. H. Brubaker, and George S. Cable, J. G. L. Kib-ler and H. L. Rutherford, whose evidence was taken ore tenus before the court, and reduced to writing. [Here follow what purport to be copies of certain contracts, letters, statements and accounts, none of which are mentioned or referred to in the pleadings or prove themselves.]

"Ross Cutter & Silo Company v. H. L. Rutherford.

"Transcript of evidence taken before Honorable J. R. H. Alexander, Judge of the Circuit Court of Fauquier County, at Warrenton, Virginia, February 3, 1930. [Here follows list of counsel present.]

"Mr. Richards: If the court please, we wish to file the evidence of Mr. Dey and the exhibits therewith and others as called for in these depositions, the contract with Brubaker at the time process was served on him and a statement of the number of silos which were sold from February 1, 1926, to November 27, 1929, and we wish to note an exception to being required to file a copy of silos sold in Virginia during that time, and ask that the injunction be perpetuated and that the judgment be declared null and void.

"Captain Grimsley: May it please the court, we desire to offer Mr. W. H. Brubaker as a witness, and ask the privilege of examining him as an adverse witness, as agent of the defendant in this State, and we summonsed him, requiring him to bring certain papers. We have not talked with him at all. We want to put him on the stand and see what he has produced. [Here is inserted what purports to be testimony given by William H. Brubaker, J. R. Grigsby, George S. Cable, Jr., J. G. L. Kibler and H. L. Rutherford, including certain questions asked them by the court and remarks made by the court during their examination.]

"And on the 24th day of March, 1930, the following decree was entered. [Here follows caption of cause and a decree the material parts of which read:]

"This cause came on this day to be further heard upon the bill of complaint, the answer thereto, and the exhibits and evidence taken ore tenus before the court; and upon the motion of the complainant for an enlargement of the injunction heretofore granted in the cause; and the court is of opinion after carefully reading the pleadings and affidavits and hearing the evidence and argument of counsel, that the complainant, Ross Cutter & Silo Co., Inc., was at the time the judgment was obtained against it, in favor of the defendant, for the sum of $8,209.28, with interest thereon from the 7th day of June, 1929, and $16.80 costs, engaged in and doing business in the State of Virginia, and that W. H. Brubaker was at that time an agent of the complainant, and such anagent upon whom process could be served in order to obtain a judgment, it is, therefore, hereby adjudged, ordered and decreed that the motion to enlarge the injunction be and the same is hereby denied and refused, and that the judgment obtained in favor of the defendant, H. L. Rutherford, against the complainant, Ross Cutter & Silo Co., Inc., is a valid judgment, and that the bill of complaint be and the same is hereby dismissed, and that the defendant, H. L. Rutherford, recover of the complainant, Ross Cutter & Silo Co., Inc., his costs in this behalf expended.

"A Oopy-Teste:

"T. B. Bartenstein, Clerk.

"I certify that the foregoing pages contain so much of the record in the chancery suit now pending in the Circuit Court of Fauquier County styled Ross Cutter & Silo...