Savage v. People's Bldg., Loan & Sav. Ass'n

• Decision Date: 23 November 1898
• Citation: 31 S.E. 991,45 W.Va. 275
• Parties: SAVAGE et al. v. PEOPLE'S BUILDING, LOAN & SAVINGS ASS'N.
• Court: West Virginia Supreme Court

31 S.E. 991

45 W.Va. 275

SAVAGE et al. v. PEOPLE'S BUILDING, LOAN & SAVINGS ASS'N.

Supreme Court of Appeals of West Virginia.

November 23, 1898

Submitted June 15, 1898

Syllabus by the court.

1. A building and loan association chartered by the state of New York, which has complied with our statute by appointing an attorney in this state to accept service for it, does not thereby become a domestic corporation.

2. A statute merely enabling a foreign corporation to hold property or do business in this state does not make it a domestic corporation, and it may be proceeded against by attachment as a foreign corporation.

3. A provision in one of the conditions indorsed on the certificates of stock issued by such corporation that any action brought against the association by the shareholders shall be brought in the county of Ontario, N. Y., is a void requirement, as jurisdiction cannot be taken away by consent.

4. A corporation has not the power, by laws of its own enactment to disturb or devest rights which it has created, or to impair the obligation of its contracts, or to change its responsibility to its members, or to draw them into new and distinct relations; and all by-laws attempting to do this are inoperative and void.

5. Where a certificate of stock on its face provides that the holder may withdraw the amount paid on the same to a building and loan association, at any time within three years from its date, together with 6 per cent. interest, all of which are payable in the manner set forth in the articles of association and by-laws, and terms and conditions printed on the back of certificate,--the fourth of which conditions provides that "the payment on this certificate cannot be withdrawn until after three years from the date of this certificate; if withdrawn between that date and maturity, the holder shall be entitled to receive sixty dollars for each of said shares, together with six per cent. per annum," --said condition and the by-laws of said association existing at the date of said certificate are a part of the contract and the manner and time of withdrawal and payment cannot be changed by a subsequent by-law.

Appeal from circuit court, Wood county; A. I. Boreman, Judge.

Bill by Thomas S. and E. J. Savage against the People's Building Loan & Savings Association. Decree for plaintiffs, and defendant appeals. Affirmed.

J. W Vandervort and Chester M. Elliott, for appellant.

Van Winkle & Ambler and Moats & Peterkin, for appellees.

ENGLISH J.

Thomas S. Savage and E. J. Savage, administrators of the estate of George Savage, deceased, brought a suit in equity in the circuit court of Wood county, against the People's Building, Loan & Savings Association, a corporation organized and existing under the laws of the state of New York, to recover from the defendant the sum of $840, with interest thereon from the 10th day of August, 1892, claimed to be due the plaintiffs, as the withdrawal value of 14 shares of paid up stock in the defendant company. An attachment was sued out against the defendant, and levied on its real estate situated in said county. The sole ground upon which the order of attachment was based was that the defendant was a foreign corporation. The defense interposed was a plea in abatement of the suit, a plea in abatement to the attachment, and a demurrer and answer to the bill. Depositions were taken by plaintiffs and defendant. Objections were sustained to the pleas in abatement. The demurrer to the bill was overruled. A decree was rendered against the defendant for $1,105.86. The attachment was sustained, and the real estate levied on was directed to be sold to satisfy said debt, upon the terms prescribed in said decree. The defendant then moved the court to modify the decree so that interest should be calculated on the $840 only from the date said shares of stock in controversy were presented to defendant association for withdrawal, to wit, September 9, 1895, which motion was overruled. The defendant also moved the court to require plaintiffs and the special commissioners appointed to enforce said decree to do so in such manner that plaintiffs should only participate equally with the other stockholders who filed withdrawals of their shares with said association at the same time or before plaintiffs filed withdrawals of their shares, in order that all stockholders might be placed in the same position, and the withdrawing shareholders might all have equal standing, which motion was overruled, and the defendant obtained this appeal.

The first error assigned and relied on by the defendant is that the court erred in failing and refusing to dismiss the plaintiffs' bill upon the plea in abatement to said suit. This plea, in substance, claims that the plaintiffs did not at the time of the institution of said suit have a right to institute it in the state of West Virginia, because, as fully shown in the bill, if any such suit or action existed at the time the same was instituted, it should have been brought in the county of Ontario and state of New York; that it is a corporation of the state of New York, and has fully complied with the laws of West Virginia governing foreign corporations doing business in this state, has caused an attorney in fact to be appointed, as required by statutes of West Virginia, and the plaintiffs could not obtain jurisdiction by attachment of defendant's property in this state; that defendant is a solvent corporation, and no ground for said attachment existed. This question was passed upon by this court in the case of Quesenberry v. Association (recently decided, and not yet officially reported) 30 S.E. 73, in which it was held: "(1) A suit against a foreign corporation may be brought in any county wherein it has estate or debts due it. It is a nonresident, under clause 3, § 1, c. 123, Code 1891. (2) The appointment by a foreign corporation of an attorney in this state to accept service of process does not make it a domestic corporation. (3) A statute merely enabling a foreign corporation to hold property or do business in this state does not make it a domestic corporation." Brannon, P., in delivering the opinion of the court, uses the following language: "Another point is made that, as this foreign corporation has appointed an agent to accept service of process, it is not liable to attachment. It is a foreign corporation, and is a nonresident, and the fact that it owns property here no more converts it into a resident than it converts a natural person into a resident. It dwells--has its habitat or domicile--in New York, where it was chartered;" citing Humphreys v. Newport News & M. V. Co., 33 W.Va. 137, 10 S.E. 39.

It is insisted by counsel for the appellant in his brief that this suit abated by reason of the fact that the summons was issued on the 2d day of December, 1895, and was returnable to rules to be held on the 1st of December, 1895,--a day prior to the date on which it issued, and before the suit was instituted,--and a considerable portion of his argument is devoted to the consideration of this alleged mistake. A stipulation is filed with attorneys' brief for the appellees, signed by coun...