Schultz v. Long Island Machinery & Equipment Co., Inc

• Decision Date: 01 April 1937
• Docket Number: 5432
• Citation: 173 So. 569
• Parties: SCHULTZ v. LONG ISLAND MACHINERY & EQUIPMENT CO., Inc
• Court: Court of Appeal of Louisiana — District of US

173 So. 569

SCHULTZ v. LONG ISLAND MACHINERY & EQUIPMENT CO., Inc

No. 5432

Court of Appeal of Louisiana, Second Circuit.

April 1, 1937

Isaac Abramson, of Shreveport, for appellant.

L. L Lockard and Harry V. Booth, both of Shreveport, for appellee.

OPINION

TALIAFERRO Judge.

Plaintiff seeks to recover judgment in personam against defendant, a foreign corporation, domiciled in the state of New York, for an alleged balance due on sales of scrap iron and steel, consummated in the state of Louisiana. It is alleged that defendant, through its agents and officers, has been doing business in the state for the past several years, such business being the buying of scrap iron and scrap steel therein, and particularly in the cities of New Orleans, Lake Charles, and Shreveport, wherein this suit was filed; that after making purchases of said material in and about the city of Shreveport, shipment thereof was made to New Orleans or Lake Charles, at which ports said material is sold to foreign purchasers for overseas shipment, "and accordingly has been loading same out of Lake Charles and New Orleans, Louisiana, destined for foreign ports." From these allegations of fact, plaintiff draws the legal conclusion and avers that defendant has subjected itself to the jurisdiction of the courts of this state.

Pursuant to plaintiff's prayer, service of citation and petition was made on the secretary of state, as is authorized by section 26 of Act No. 267 of 1914.

Defendant's exception to the court's jurisdiction is as follows:

"Now into court through undersigned counsel comes the Long Island Machinery & Equipment Company, appearing herein for the purposes of this exception only and not subjecting itself to the jurisdiction of this court for any other purpose, excepts to the jurisdiction of this court to hear and to determine this cause for the following reason, to-wit:

"That defendant is a corporation, incorporated and domiciled in the State of New York; that it has not been licensed to do business in the State of Louisiana and has not appointed an agent or agents for the service of process in the State of Louisiana; that it has no agents for any purpose who are residents of the State of Louisiana, and maintains no office nor place of business of any kind in the state; that it is engaged exclusively in the interstate and foreign commerce; and that the contract sued on herein was the purchase of materials for shipment to the Kingdom of Japan and required, as plaintiff well knew, a continuous movement from Shreveport, Louisiana, to Lake Charles and thence by ship to Japan with only interruption in movement at Lake Charles, as was required for inspection and loading on a ship; that defendant does no continuous business in Louisiana, but comes into the state by non-resident agents casually and intermittently and for a short time only for the limited purpose of purchasing scrap iron for interstate and foreign shipment, and that it has never done a local business in the State of Louisiana and that at this time it is not engaged in business of any sort in the State of Louisiana that the defendant herein is not a corporation required by law to maintain an agent for the service of process in the State of Louisiana; and that even if the court finds it is required by the State of Louisiana to appoint an agent for service, then in that event defendant alternatively shows that plaintiff has not complied with section 26 of Act. No. 267 of the Legislature of 1914, accordingly service of process on the defendant herein through the Secretary of Louisiana is null and void and does not subject defendant to the jurisdiction of this court.

"Wherefore, exceptor prays that this exception to the jurisdiction of this court to hear and determine this cause be maintained, and that plaintiff's demand be dismissed with costs."

The exception was tried and submitted upon an agreed statement of facts, which we have incorporated in full:

"The defendant is a corporation, incorporated and domiciled in the State of New York; it has not been licensed to do business in the State of Louisiana and has not appointed an agent or agents for the service of process in the State of Louisiana; it has no agents for any purpose who are residents of the State of Louisiana and maintains no office nor place of business of any kind in the State.

"It is engaged in the business of buying and selling scrap iron and steel.

"It maintains no office in the State of Louisiana, but its officers and agents come to the State of Louisiana and purchase scrap iron and steel, from various persons located and doing business in the State of Louisiana.

"It has this scrap iron and steel shipped either to Lake Charles, Louisiana, or New Orleans, Louisiana, where it is inspected and unloaded. After being inspected by the representatives of the defendant Corporation, the scrap iron and steel which meets the requirements is loaded and shipped either to other parts of the World, usually to the Kingdom of Japan, or to other States of the Union.

"The Corporation has been engaged in this method of procedure for several years with reference to its Louisiana business; that all of the scrap iron and steel in Louisiana, as above set forth, is shipped out of the State of Louisiana.

"The said agents of defendant come into Louisiana only casually and intermittently and for a limited purpose of purchasing and shipping scrap iron or steel out of the State; and do likewise in other States of the Union except the State of New York."

The court sustained the exception and dismissed the suit, giving written reasons for its action. On motion for a rehearing, plaintiff alleges:

"3. Mover shows that the court has erred in its construction of the words "casual' and "intermittently', placed in the Stipulation of Facts and has taken it to mean that the actions of the defendant are in no sense continuous.

"4. That as a matter fact the business engaged in by the defendant consists of regularly purchasing scrap iron and steel and selling it, as set forth in the agreed Statement of Facts.

"5. That it is not continuous in the sense that it maintains an office here and continually does business. That on the other hand, the defendant comes into the State of Louisiana, every year in order to make these purchases. That it does not make these purchases daily, but canvasses the trade intermittently every year.

"6. That the business of the defendant is therefore such as to subject it to the jurisdiction of the court.

"7. That the statement in the stipulation that the business done by the defendant was casual and intermittent is a statement of law and not of fact and cannot be accepted without a stipulation of actual facts constituting such a business is casual and intermittent."

This motion was overruled. The court supports its denial of the motion by written reasons.

The question here presented is whether defendant is engaged in or doing business within the state of Louisiana in such manner and to such extent as to render it amenable personam to the jurisdiction of its courts, it being admitted that exceptor has not established an office or appointed an agent therein for service of process. The lower court lucidly discussed the question and gave sound reasons for resolving it favorably to the exception. We adopt these reasons as reflecting our own opinion of the matter and incorporate them herein:

"The plaintiff, a resident of the Parish of Caddo, sues in this court the defendant, a corporation incorporated under the laws of the State of New York and there domiciled. The suit is to recover what is claimed to be the balance due on the sale of scrap iron from plaintiff to defendant, and for damages growing out of said failure to pay the balance. In other words, the suit is one strictly in personam.

"The plea to the jurisdiction is submitted on an agreed statement of facts, which statement shows that the defendant is domiciled in the State of New York; is not licensed to do business in the State of Louisiana; has not appointed an agent or agents for service of process in the State of Louisiana, and has no agents for any purpose who are residents of the State of Louisiana, and maintains no office or place of business of any kind in this state; that defendant is engaged in the business of buying and selling scrap iron and steel; that its officers and agents come to the State of Louisiana and purchase scrap iron and steel in this state; that this scrap iron and steel is shipped either to Lake Charles or New Orleans, where it is inspected and unloaded, and that after being inspected by the representatives of the defendant, the accepted scrap iron and steel is loaded and shipped to other parts of the world, usually to the Kingdom of Japan or to other states of the Union. That defendant has been engaged in this method of procedure for several years with reference to its Louisiana business, and that said agents of defendant come into Louisiana only casually and intermittently and for the limited purpose of purchasing and shipping scrap iron and steel out of the state.

"It is contended by counsel for plaintiff that the defendant has waived any plea to the jurisdiction by filing in the alternative an objection to the citation, but all reference to the citation in this case is merely for the purpose of showing that the court had no jurisdiction, and such is not, in its proper sense, an exception to the citation and does not serve as a waiver of the plea to the jurisdiction. "Inasmuch as there is no allegation and no proof one way or the other that the defendant was at the time the present suit was brought doing any business in the State of Louisiana, it might be said that the case of Gouner v. Missouri Valley Bridge & Iron...