Sandford v. Dixie Const. Co

• Decision Date: 09 June 1930
• Docket Number: 28717
• Court: Mississippi Supreme Court
• Parties: SANDFORD v. DIXIE CONST. CO

128 So. 887

157 Miss. 626

SANDFORD v. DIXIE CONST. CO

No. 28717

Supreme Court of Mississippi

June 9, 1930

(In Banc.)

1 CORPORATIONS. Foreign corporation designating resident agent could be sued in circuit court of county where transitory cause of action accrued (Laws 1928, chapter 90, section 11; Hemingway's Code 1927, section 500).

The foreign corporation referred to was doing business in state and under Laws 1928, chapter 90, section 11, had designated resident agent within state who resided in H. county. Plaintiff sued the corporation in circuit court of F. county upon transitory cause of action which accrued in F. county and served summons on resident agent in H. county. Laws 1926 chapter 155; Hemingway's Code 1927 section 500, provides that civil action shall be commenced in county in which defendants may be found or county where cause of action accrued, except where otherwise provided.

2. CONSTITUTIONAL LAW.

Statute must be construed, if possible, as being intended to come fairly within constitutional rights and limitations.

3 CORPORATIONS. Foreign corporation designating resident agent is placed, as regards venue in transitory action, in same position as domestic corporation (Laws 1928, chapter 90, section 11, Hemingway's Code 1927, sections 500, 4506).

Laws 1908, chapter 123; Hemingway's Code 1927, section 4506, declares that all foreign corporations doing business in state shall be subject to suit here to same extent that corporations of state are, whether cause of action accrued in state or not, and this statute indicates general policy of equality and similarity of treatment as between foreign and domestic corporations.

HON. W. J. PACK, Judge.

APPEAL from circuit court of Forrest county, HON. W. J. PACK, Judge.

Action by C. W. Sandford against the Dixie Construction Company. From the judgment, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Currie & Currie, of Hattiesburg, for appellant.

Process actually issued and served upon the agent of the defendant designated in this state, by it, under the statute of the state, for the service of process, is sufficient to confer upon this court jurisdiction of the person of the defendant.

Fidelity & Casualty Co. v. Cross, 89 So. 780; Great Southern Life Ins. Co. v. Gomillion, 110 So. 770; Section 550, Volume 1, Hemingway's Code 1927; Section 4506, Volume 2, Hemingway's Annotated Mississippi Code 1927; Section 11, page 133, General Laws of Mississippi 1928; Bagdon v. Philadelphia & Reading Coal & Iron Co., 217 N.Y. 432, 111 N.E. 1075; Annotated Cases, American & English, 1918A, page 389; Whitehead v. Cox, 218 P. 867; Maxwell et al. v. American Motor Car Sales Co., 181 Ind. 153, 103 N.E. 1071; Annotated Cases, Am. & Eng., 1916D, page 375; W. J. Armstrong Company v. N.Y. Central & Hudson River Railroad Company, 129 Minn. 104, 151 N.W. 917; Annotated Cases, Am. & Eng. 1916E, page 335.

Stevens & Heidelberg, of Hattiesburg, for appellee.

Counsel contend, that section 4506, Hemingway's Code of 1927, making foreign corporations subject to suit in this state to the same extent as corporations of this state are, fixes the venue of actions against foreign corporations the same as the venue of actions against domestic corporations, and argue that, in view of the fact that section 500 of Hemingway's Code of 1927, provides that suits may be brought against domestic corporations either in the county where the cause of action occurred, or in the county where the cause of action accrued, that the same thing applies likewise to foreign corporations. This is not the law.

Hercules Powder Company v. Tyrone, 124 So. 74.

Section 4506 of Hemingway's Code of 1927, is not dealing with the venue of causes of action against foreign corporations. It nowhere provides where suits may be filed, and does not attempt to fix the jurisdiction of the particular cause within the state, but is simply making foreign corporations liable to be sued in the state to the same extent as are domestic corporations.

OPINION

Griffith, J.

Appellee, Dixie Construction Company, is a foreign private corporation, doing business in this state, and under section 11, chapter 90, Laws 1928, it has designated a resident agent within this state. This agent resides in the county of Harrison. Appellant sued appellee in the circuit court of Forrest county upon a transitory cause of action which accrued in the latter county, and served the summons on the resident agent in Harrison county, there being no service of process in Forrest county where the suit was brought. The sole question to be decided is whether the circuit court of Forrest county, under the facts stated, had jurisdiction to proceed with the suit, and we answer that question in the affirmative.

The circuit court venue statute is chapter 155, Laws 1926, section 500, Hemingway's Code 1927, which reads as follows: "Civil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant or any of them may be found, and if the defendant is a domestic corporation, in the county in which said corporation is domiciled, or in the county where the cause of action may occur or accrue except where otherwise provided. . . ."

Up to the time of the enactment of the chapter of the Laws of 1928, above cited, the place of suit against and service on a private foreign corporation in transitory actions was controlled by section 920, Code 1906, section 4507, Hemingway's Code 1927, which provides that: "Process may be served upon any agent of said corporation found within the county where the suit is brought, . . ." under which our courts held uniformly that when a foreign private corporation was the sole defendant the action could be maintained only in a county where an agent of the corporation was found and served with process; and without the said Laws of 1928 or where no resident agent is shown to have been designated thereunder, the same rule still exists and fully applies.

The question now before us is reduced simply to what is the effect of said section 11, chapter 90, Laws 1928, when the foreign private corporation has fully complied therewith and has duly appointed a resident agent in one of the counties of the state, as is the case before us, upon whom process may be served as completely and with an effect as absolute and unquestionable as if then and there served on the highest executive officer of the corporation. The said section, after providing that "every domestic corporation, whether heretofore or hereafter organized, shall maintain an office in the county of its domicile in this state, either in charge of an officer or officers of the corporation, or in charge of some persons or corporation duly designated as resident agent for the service of process, . . . a duly certified copy of the resolution designating such resident agent, and the written acceptance of such agency by the agent, to be filed with the secretary of state, . . ." then further provides in its second paragraph "That every foreign corporation doing business in the state . . . whether it has been domesticated or simply authorized to do business within the state . . . shall . . . file a written power of attorney designating . . . an agent as above provided in this section, as its agent upon whom service of process may be had in the event of any suit against said corporation;" and the section further contains such complementary provisions as in all substantial respects place domestic and foreign corporations, which comply with the section, upon the same and an equal level as regards the manner of service of process upon them and in the matter of the conclusive force thereof.

Construing statutes similar to the above, in all material particulars, several of the courts have held that "the appointment of such an attorney in fact is made for the whole state, " and that the venue or place of trial is not controlled by the residence of the agent designated. In other words, that the suit may be filed in any county of the state and the agent designated may be served in that or in any other county, the residence of the agent being in contemplation of law in every county of the state. An illustration from among these cases is found in Ramaswamy v. Hammond Lumber Co., 78 Ore. 407, 152 P. 223. Other courts have held to the contrary, among which is our own court in American Surety Co. v. Holly Springs, 77 Miss. 428, 27 So. 612.

In Arkansas the statutes required the foreign corporation to designate a resident agent, but the statute did not leave the question open to the chance that the court might or might not hold as the Oregon court and some others had held, namely that the appointment of such an agent would be statewide in its effect, but the statute itself provided that such a designation should have that effect and that the foreign corporation could be sued in any county...