Ryerson v. Steere

• Decision Date: 14 September 1897
• Citation: 72 N.W. 131,114 Mich. 352
• Court: Michigan Supreme Court
• Parties: RYERSON v. STEERE.

72 N.W. 131

114 Mich. 352

RYERSON v. STEERE.

Supreme Court of Michigan

September 14, 1897

Petition by Albert W. Ryerson, as relator, against Joseph H. Steere acting Wayne circuit judge, for mandamus. Writ issued.

Bowen Douglas & Whiting, for relator.

Frank E. Robson, for respondent.

MOORE J.

March 11, 1897, petitioner, a resident of Detroit, commenced a suit by summons in the Wayne circuit court against the Beach &amp Clarridge Company, a Massachusetts corporation, for a cause of action accruing in Wayne county. The service was made upon H. L. Baker, who is said by petitioner to be the traveling agent of said corporation. Motion was made to set aside the service, because unauthorized. The service was set aside, and the proceedings dismissed. It is sought to review that action here.

It is claimed the service was authorized by Act No. 61 of the Public Acts of 1895, which reads: "Suits may be commenced at law or in equity in the circuit court where the plaintiff resides *** against any corporation not organized under the laws of this state in all cases where the cause of action arose in the state of Michigan, by service *** upon any officer or agent of the corporation," etc. The record shows Mr. Baker was a traveling salesman of the Massachusetts corporation. His business was the taking of orders for goods in this and a number of other states. He had no office in this state. He did not have charge of any men under him. His duties were those of the ordinary traveling agent, selling goods to retail dealers.

Petitioner contends that the motion to set aside the service was not the proper remedy; that the question should have been raised by plea. The record does not disclose that this objection was made in the court below. There the petitioner filed counter affidavits, and proceeded to a hearing of the motion as made. We do not think the point can be raised here for the first time.

It is the claim of the respondent that Mr. Baker was not such an agent as is meant by the statute, where it authorizes service upon an agent; citing Newell v. Railway Co., 19 Mich. 336; Watson v. Circuit Judge, 24 Mich. 38; Railway Co. v. Hunt, 39 Mich. 469; Pettit v. Booming Co., 74 Mich. 214, 41 N.W. 900; Kirby Carpenter Co. v. Trombley, 101 Mich. 447, 59 N.W. 809. These cases do not throw much light upon the discussion, as the statute construed by them is quite different from the one to be construed here. In the last three cases the statute reads that service might be made on certain officers, "and the general or special agent, superintendent, or other principal officer."

Counsel also cite Maxwell v. Railroad Co., 34 F. 286. In this case Justice Brown held: "It does not appear to me that the law of this state with respect to suits against foreign corporations (How. Ann. St. � 8145) cuts any figure in the case, since it provides for service of process upon the...