Saunders v. Sioux City Nursery

Decision Date12 July 1890
CourtUtah Supreme Court
PartiesJ. H. SAUNDERS, RESPONDENT, v. SIOUX CITY NURSERY, APPELLANT

APPEAL from a judgment dismissing a writ of certiorari of the district court of the third district. The opinion states the facts.

Affirmed.

Messrs Hoge and Burmester for the appellant.

Mr Frank B. Stephens for the respondent.

ZANE C. J. HENDERSON, J., and BLACKBURN, J., concurred.

OPINION

ZANE, C. J.

The plaintiff instituted an action in a justice's court against the defendant to recover $ 266.70, a balance due the former, as alleged, for services as salesman. It appears from the record that the defendant failed to appear at the trial, and the justice entered a default, and upon the papers and evidence found the above amount to be due the plaintiff, and entered judgment against the defendant therefor; and, upon application of the defendant, the district court ordered a writ of certiorari. To this writ the plaintiff entered his appearance, and moved the court to quash it, among others, for the following reasons: First, that the justice regularly pursued his authority, and acted within his jurisdiction; second, that the defendant had the right of appeal; third, that defendant had a plain, speedy, and adequate remedy without the writ. The district court found that the judgment of the justice was valid, and affirmed it. From the latter ruling the defendant has appealed to this court.

The appellant insists that the complaint was fatally defective, and that no evidence was admissible under it, for the reason that it contained no allegation of corporate existence. In the title of the complaint the name of the defendant is given, and its corporate existence is declared in the following language: "The Sioux City Nursery and Seed Co., a corporation under the laws of the state of Iowa, defendant." The title of a complaint should contain the name of the court in which it is filed, and the names of the parties to the action. In this case the name of the defendant is given, and it is further described by the statement that it has a corporate existence under the laws of the state of Iowa; and, so described in the title, it is referred to in the allegations of the complaint as defendant. In construing such a complaint, the title, when so referred to, must be regarded as a part of it; and, so construing the complaint, it clearly appears that the action is against the defendant as a corporation. That fact appearing, the defendant should have answered denying its corporate existence, if it intended to contest that fact. In the case of Cement Co. v. Noble, 15 F. 502, the court said: "The declaration in the commencement merely states that 'the Union Cement Company of Buffalo, New York, plaintiff herein,' by attorney, 'complains,' etc., and does not otherwise aver the fact that plaintiff is a corporation. Was the objection to the admission of the notes well taken? I am of opinion that it was not, and that the notes were properly admitted. It is not necessary for a plaintiff corporation to allege that it is a corporation in the pleading; it is sufficient to state in the commencement of the declaration the name of the corporation, as was done here, just as the name of a natural person suing is stated." And in Academy v. McKechnie, 90 N.Y. 618, the court said: "And, finally, it is insisted that the action cannot be maintained, because the complaint does not allege the plaintiff to be a corporation. The plaintiff sued as a corporation, and the answer does not contain an affirmative allegation that the plaintiff is not a corporation. Without such an allegation in the answer, proof of the corporate existence of the plaintiff was unnecessary."

It is also claimed that the justice did not obtain jurisdiction of the defendant, because the court was held in the fifth precinct, and the person on whom the summons was served resided in the fourth. It appears from the record that both precincts were within the limits of the city of Salt Lake. The statute (Comp. Laws Utah, 1888, Sec. 3021) provides that justices of the peace shall have jurisdiction within their respective precincts or cities. And division 9, Sec. 3537, Comp. Laws Utah, 1888, provides that, unless the cause falls within an exception mentioned in the other eight divisions, the suit must be commenced in the precinct or city in which the defendant resides. The service under consideration was governed by the ninth division; and, subject to the right to change the place of trial as provided by law, it requires the trial to be in such precinct or city. It is sufficient if the person to be served resides in the city in which the trial is to occur. In some states a defendant may be sued before any justice of the county. In order that parties may not be compelled to attend trial at distant and inconvenient places, the legislature of this territory has required the suit to be brought in the precinct or city in which the defendant resides. The boundaries of cities are not so extended as to make it inconvenient and burdensome for parties to attend trial before any justice within their limits.

It is further urged by defendant that the justice did not obtain jurisdiction of the defendant for the reason, as alleged that the service of summons on Theodore Burmester was void. It appears from the record that Mr. Burmester, at the time of the service, was an attorney of the defendant, and employed in the collection of certain claims due it, and that he was then intrusted by it with the possession of certain of its property. The last clause of division 5, Sec. 3208, Laws Utah, supra, provides that when the defendant is a foreign corporation, and has an acknowledged agent in this territory, service may be made on such agent, or, if no such agent is found, on any person in its employ, or who has any of its property in charge." The evidence shows that the officer, before making service, made diligent search for another agent of the defendant on whom to make it, but was unable to find one in the territory. The service is good if the provision of the statute above quoted is valid. This statute is based upon the presumption that a person intrusted by a foreign corporation with the possession of its property will, in the discharge of his duty, communicate to it the service upon him of any process against such corporation issued in any suit that may result in a judgment and execution that may deprive him of his possession and such corporation of its property. The probabilities are, under such circumstances, that the corporation will be informed of the pendency of the suit. The principle involved is similar to that when the law authorizes service made by a copy left at the defendant's usual place of abode with some person of sufficient age and capacity, or in cases of constructive notice. The legislators doubtless thought the authority to make such service might be necessary to meet the contingencies which might arise in the administration of public justice. Conceding human motives their usual play, such service is likely to result in actual notice to persons whose rights...

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9 cases
  • Honerine Min. & Mill. Co. v. Tallerday Steel Pipe & Tank Co.
    • United States
    • Utah Supreme Court
    • 5 d3 Dezembro d3 1906
    ... ... belonging to the defendant, was good. (Saunders v ... Nursery Co., 6 Utah 431; Burgess v. Aultman & ... Co., 80 Wis ... and afterwards forwarded to said Elliott a letter to Salt ... Lake City, Utah in which was inclosed a statement of the ... account, and in which ... ...
  • Mann v. Morrison
    • United States
    • Utah Supreme Court
    • 30 d4 Dezembro d4 1943
    ... ... 326; Page v. Commercial Nat. Bank of Salt Lake ... City, 38 Utah 440, 112 P. 816; MacFarlane v ... Burton, Judge, 64 Utah 41, ... Certiorari does not lie when the judgment is appealable ... Saunders v. Sioux City Nursery & Seed Co., ... 6 Utah 431, 24 P. 532; Hallowel, ... ...
  • Gilbert v. Board of Police & Fire Commissioners of Salt Lake City
    • United States
    • Utah Supreme Court
    • 27 d6 Abril d6 1895
    ... ... conflict with the decision of this court in Saunders ... v. Sioux City Nursery , 6 Utah 431, 24 P. 532. In ... Golding v. Jennings , 1 Utah 135, ... ...
  • Leader Printing Co. v. Lowry
    • United States
    • Oklahoma Supreme Court
    • 7 d2 Novembro d2 1899
    ...Co., 5 Okla. 32, 47 P. 484; White v. Mullins, [Idaho] 3 Idaho 434, 31 P. 801; and other authorities not cited. Contra, Saunders v. Seed Co., [Utah] 6 Utah 431, 24 P. 532.) ¶14 And it is a well-settled rule that after the writ is issued it must stand alone, and any defect therein must be cor......
  • Request a trial to view additional results

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