A. S. White & Co. Inc v. Jordan

• Decision Date: 16 January 1919
• Citation: 98 S.E. 24
• Court: Virginia Supreme Court
• Parties: A. S. WHITE & CO., Inc. v. JORDAN.

98 S.E. 24

A. S. WHITE & CO., Inc.

v.JORDAN.

Supreme Court of Appeals of Virginia.

Jan. 16, 1919.

Burks, J., dissenting.

Error to Circuit Court, Nelson County.

Action by J. W. Jordan against A. S. White & Co., Incorporated. Judgment for plaintiff, and defendant brings error. Affirmed.

Caskie & Caskie, of Lynchburg, for plaintiff in error. S. B. Whitehead, of Lovingston, for defendant in error.

PRENTIS, J. The main question here presented is identical with that determined by.this court in the case of Ward Lumber Co. v. Henderson-White Mfg. Co., 107 Va. 626, 59 S. E. 477, 17 L. R. A. (N. S.) 324; that question being: Is section 3225 of the Code, so far as it authorizes the service of process on a domestic corporation which has no person in the county or corporation wherein the case is commenced on whom process can be served, by the publication of a copy of the process in a newspaper, violative of the fourteenth (amendment of the United States Constitution and of section 11 of the Virginia Constitution, which prohibit the taking of property "without due process of law"?

In that case this court decided that the section does afford due process of law and is constitutional.

The learned counsel for the petitioner reopens the question and presents the contrary view with consummate ability and force. However much we are impressed thereby, we are not disposed to disapprove the former ruling, though its soundness is doubted by very high Virginia authority. Burks' Pl. & Pr. 312.

One difference between this, and the question to which most of the cases relied on to support this contrary view, is that here we are dealing with a domestic corporation, which received its charter from this state and is within its jurisdiction; whereas, Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, and the multitude of cases following it, nearly all refer to foreign corporations or natural persons who are not within the jurisdiction of the state in which the action is brought. The underlying principal of these cases Is that a statute can have no extraterritorial effect, and it is nowhere now questioned that no personal judgment can be rendered against a foreign corporation or nonresident, proceeded against by order of publication, and that a court, in such cases, can only subject the property within the jurisdiction of the state to the claim.

As Judge Cardwell points out in Ward Lumber Co. v. Henderson-White Co., supra, this statute, section 3225, has been in force for a great many years. It had at that time never come under review in this court, but in the case of Wytheville Ins. Co. v. Stultz, 87 Va. 629, 13 S. E. 77, although the case was hotly contested, no doubt whatever was suggested and no question raised as to the validity of the statute; its constitutionality being assumed both by the court and counsel.

Dr. Lile, in his Notes on Corporations (page 342), refers to and analyzes the statute, but does not question its constitutionality; and in a note said to have been written by that great jurist, Judge Burks, the elder, in 2 Va. Law Reg. at page 545, the history of the statute is given. It is shown that In Us present form it originated with the learned revisors of the Code of 1887 (of whom one was Judge Burks); and here again no question as to the constitutionality of the statute is intimated.

Judge Cardwell called attention to certain expressions of that great master of the law, Judge Cooley (Cooley's Const. Lim. [7th Ed.] p. 236), one of which is:

"The courts cannot run a race of opinions of right reason and expediency with the lawmaking power."

It is agreed that the courts cannot condemn any method of service which the Legislature prescribes, if it appears reasonably probable that the method prescribed will give the defendant notice of the proceeding and (afford him an opportunity to defend.

In the case of Bicknell v. Herbert, 20 Hawaii, 132, Ann. Cas. 1913A, 1186, it is said:

"Notice by publication is, perhaps, a method more often used as a substitute for personal service, but there is no distinction in principle between the one method and the other. Neither is based on the theory that it will necessarily give actual notice to the defendant, but merely that it will give such notice to himself or to his agents, if he cares to take reasonable precautions for the protection of his property."

In a note to that case, Ann. Cas. 1913A, at page 1189, this is quoted from Chatham v. Mansfield, 1 Cal. App. 298, 82 Pac. 343:

"Due notice to the defendant is essential to the jurisdiction of all courts, but such notice may be either actual or constructive in certain cases, as prescribed by the law pertaining to the forum in which such notice is given. If the Legislature has prescribed a kind of notice by which it is reasonably probable that the party proceeded against will be apprised of what is going on against him, and an opportunity is given him to defend, and the notice is given as the law requires, this will be held sufficient and due process of law."

In Freeman on Judgments (4th Ed.) § 127, p. 219, this is said:

"Therefore citizens and residents of a state may, if its laws so provide, be served with process by the publication thereof, or leaving it at their usual place of abode, or in such other mode as the Legislature deems proper under the circumstances of the case, if it appears probable that it will advise them of the proceedings against them, and afford them an opportunity to defend."

In the case in judgment the plaintiff in the trial court could only sue the defendant either in the county of Nelson, in which the cause of action arose, in the city of Lynchburg, in which the principal office of the corporation was located, or in the county or city in which its chief officer resided. It exercised its option to institute the action in the county of Nelson, but the original process of the circuit court of Nelson countycould not be sent to the city of Lynchburg (Code, § 3220), so that, although the circuit court of Nelson county had jurisdiction of the case, there was no other method provided by which the defendant...