Smith Premier Typewriter Co. v. Westcott

• Decision Date: 12 January 1910
• Citation: 75 A. 1052,112 Md. 146
• Parties: SMITH PREMIER TYPEWRITER CO. v. WESTCOTT.
• Court: Maryland Court of Appeals

75 A. 1052

112 Md. 146

SMITH PREMIER TYPEWRITER CO.

v. WESTCOTT.

Court of Appeals of Maryland.

Jan. 12, 1910.

Appeal from Circuit Court, Kent County; Wm. H. Adkins, Judge.

Action by Simon W. Westcott, by his father and next friend, George B. Westcott, against the Smith Premier Typewriter Company. From a judgment of the Circuit Court for plaintiff, rendered on appeal from a Justice of the Peace, defendant appeals. Reversed.

Argued before BOYD, C. J., and BURKE, SCHMUCKER, and THOMAS, JJ.

B. H. Hartogensis, for appellant.

Lewin W. Wickes and Wm. W. Beck, for appellee.

BOYD, C. J. This is an appeal from a judgment rendered by the circuit court for Kent county in a case appealed from a justice of the peace of that county; the appellant contending that the court and justice were without jurisdiction to enter the judgment against it. The transcript from the justice's docket shows that the case was docketed as follows: "Simon W. Westcott, by His Father and Next Friend, George B. Westcott, v. Smith Premier Typewriter Company. J. L. Wilson, Agent." The only summons in the record directed the sheriff to summon "J. D. Wilson, Agent." It was returned, "Summoned." Mr. Wilson filed an affidavit in which he swore that he was a resident of the city of Baltimore, and denied the right of the plaintiff to sue him in Kent county; that he had no power or authority to accept service of process for the Smith Premier Typewriter Company, which was a foreign corporation, for which he was merely a salesman, and which had its principal office in Baltimore, and he therefore declined to recognize the validity of the process served on him. He described himself throughout the affidavit as "agent for the Smith Premier Typewriter Company," and so signed it, as well as individually; but it is admitted in the agreement of counsel that the company was not mentioned in the summons. The case was set for trial before the justice on November 25, 1908, at 10 o'clock a. m. At that time the plaintiff appeared with his witnesses and counsel, but there was no appearance by the defendant. The trial proceeded ex parte, resulting in a verdict for the plaintiff for the amount claimed. On the same day Mr. Barroll wrote a letter to the justice, in which he stated he had heard accidentally at 5 minutes of 10 o'clock, through a witness, that the case had been set for trial that day. He claimed that, he did not have notice of the trial, and hence had no opportunity to appear or summon witnesses and ordered an appeal to be taken to the circuit court. He spoke of the case in his order for the appeal as against "J. L. Wilson, Agent for the Smith Premier Typewriter Company," and seemed to treat the case as against Mr. Wilson, as he spoke in the letter of his client residing in Baltimore. The day the case was heard in the circuit court, Mr. Barroll filed what is spoken of in the record, as a "motion objecting that court is without jurisdiction." It is as follows: "The appellant objects to the trial of this case and asks that the appeal be dismissed upon the ground that the Justice of the peace below was without jurisdiction to try the case, and consequently this court is also without jurisdiction to hear and determine it upon its merits. The appellant calls the court's attention to the fact that the writ of summons in this case was directed against 'James L. Wilson, Agent,' and that the same contained no notice to the appellant of the character of the suit, and neither a copy of said summons nor other valid notice was served upon the appellant, and because the appellant is a nonresident corporation, with its principal place of business in the city of Baltimore, and while James L. Wilson is its salesman, he is not an agent authorized to receive service of process under the Code of Public General Laws of this state." The court overruled that motion, and granted one made by the plaintiff to strike out the name of "J. L. Wilson, Agent." A jury was impaneled, and a verdict rendered for the plaintiff, on which judgment was rendered and an appeal to this court entered on the ground that neither the justice nor the court below had jurisdiction to enter a judgment against the appellant.

The only summons set out in the record, being simply against "J. L. Wilson, Agent," was insufficient to require the company to appear. It summoned "J. L. Wilson, Agent," to appear before the justice, "to answer an action at the suit of Simon W. Westcott in a plea of debt on acct." If a judgment had been rendered by default against the company on such summons, it would have been a nullity, because the justice thereby did not acquire jurisdiction over it. There is no special pleading before a justice of the peace; but, in order to require a corporation to appear before one, there must be a summons for the corporation, unless, of course, it is waived. It may be served upon an officer or agent of the corporation, according to circumstances; but the suit must be against the corporation in order to bind it. The principle is thus stated in 20 Ency. of P1. & Pr. 1136: "A writ against a corporation, to be sufficient to sustain a judgment against such corporation, must run against it, and not against the officer or trustee, who might in law represent such corporation, and a citation addressed to an agent is no notice to the principal." We understand that to be a correct statement of the law on the subject.

It is true that Wilson seemed to understand whom the summons was intended for, and described himself as agent for the company in the affidavit he filed; but we are dealing with the rights of the company, and not with those of Wilson alone. Of course, the company could waive the absence of a summons; but we do not find such waiver. While the motion made by counsel in the circuit court is peculiarly worded—probably inadvertently asking that the appeal be dismissed—it was intended to make the objection that the court was without jurisdiction to hear the case, as it expressly stated that the justice was without jurisdiction to try it, and that the court was without jurisdiction to hear and determine it upon its merits. The motion called the attention of the court to the fact that the summons was directed against "James L. Wilson, Agent." So it is clear that he did not intend to waive the question of jurisdiction.

It was said in N. C. Ry. Co. v. Rider, 45 Md. 24, in speaking of a return of the sheriff, that: "it ought to appear affirmatively upon what person or persons the process was served, so that the court could judge whether it was in law a valid service upon the company; otherwise that would be left to depend upon the judgment or discretion of the sheriff. A return that process had been served on the corporation and the company summoned does not show that the law has been complied with, the corporation is a mere entity existing in the mind, and can neither act itself, nor be affected by legal proceedings except by and through its authorized agents." And the court said it was questionable whether a return to a writ of attachment if laid "in the hands of the Northern Central Railroad Company and summoned company as garnishee" was sufficient, but decided the case on another ground. Under our statute, after providing for service on foreign corporations upon the resident agent, if there be one, as required by section 68, art. 23, Code Pub. Gen. Laws 1904, as amended by Laws 1908, c. 240, and, if there is not, upon certain other officers or agents, it is provided: "In all cases, however, the copy of the process shall be left with the person upon whom it is served; and where process is served upon any person other than the resident agent, president, director, or other officer of the corporation, a copy of the process shall also be left at its principal office in this state, if there be one named as aforesaid." Section 67 of article 23 as amended by the act of 1908. The object of such a provision is to give the company information about the process against it, and it is evident that a copy of this summons...