Southern Motor Express Co. v. Magee Truck Lines, Inc

• Decision Date: 13 December 1937
• Docket Number: 32935
• Citation: 177 So. 653,181 Miss. 223
• Court: Mississippi Supreme Court
• Parties: SOUTHERN MOTOR EXPRESS Co. v. MAGEE TRUCK LINES, INC

177 So. 653

181 Miss. 223

SOUTHERN MOTOR EXPRESS Co. v. MAGEE TRUCK LINES, INC

No. 32935

Supreme Court of Mississippi

December 13, 1937

Division B

Suggestion Of Error Overruled March 7, 1938.

APPEAL from the chancery court of Hinds county HON. V. J. STRICKER Chancellor.

Action between the Southern Motor Express Company and the Magee Truck Lines, Incorporated. From an adverse judgment, the Southern Motor Express Company appeals. Reversed and remanded.

Reversed and remanded.

W. B Fontaine, of Jackson, for appellant.

Appellee failed to comply with the statutes pertaining to foreign corporations becoming domesticated.

One of the grounds set up in the answer to the motion was that Magee Truck Lines, Inc., the appellee, had failed to comply with the provisions of Section 4140 and there is attached to the answer the certificate of the secretary of state that the appellee had not filed a written power of attorney designating him or some resident agent for the service of process. It was contended in the lower court, and is contended here, that under the wording and provision of Section 4140, that the filing of the written power of attorney with the secretary of state designating an agent for the service of process was a condition precedent to the appellee becoming domesticated.

The language of the statute is as strong as can be put and Section 4140 says'"shall file such written power of attorney before it shall be domesticated." The appellee failed to do this and has not complied with the provisions of Article i of Chapter 100 of the Code of 1930 and therefore cannot be heard to claim the privileges of a domestic corporation.

17 Fletcher Cyclopedia Corporations, Perm. Ed., sec. 8513; People v. Hawkins, 106 Mich. 479, 64 N.W. 736; State v. Chicago, M. & St. P. Ry., 80 Iowa 586, 46 N.W. 741; Green v. Robinson, 5 How. 80; Deans v. MeLendon, 30 Miss. 343; Bohn v. Lowery, 77 Miss. 424, 27 So. 604; Quartette Music Co. v. Haygood, 108 Miss. 755, 67 So. 211; Brien v. Williamson, 7 How. 14.

Appellee was still subject to attachment and garnishmerit even though domesticated.

Section 4165, Code of 1930; 17 Fleteher's Cyclopedia Corporations, Perm. Ed., sec. 8304.

As a general rule, if the legislative act does not purport to create a new corporation, but declares that for certain purposes the foreign corporation shall be deemed to be a domestic corporation, it will be regarded as simply an enabling act regulating the right of the foreign corporation to do business in the state, and not an act of domestication, and the foreign corporation remains a corporation of the state under whose laws it was created.

Blue Ridge Power Co. v. Southern Ry., 115 S.E. 306; Jennings v. Idaho. R. L. & P. Co., L.R.A. 1915 D 115, 26 Idaho 703, 146 P. 101; Boyer v. Northern P. R. Co., 8 Idaho 74, 70 LR. A. 691, 66 P. 826; N. Y. L. Ins. Co. v. Pike, 51 Col. 238, 117 P. 899; Cook on Corporations (7 Ed.), sec. 1; Wachter v. Atchison, T. & S. F. R. Co., 10 Cal.App. 70, 101 P. 41.

In Drake on Attachments, 7th ed., sec. 80, the proposition is stated as follows: "The foreign character of a corporation is not to be determined by the place where its business is transacted, or where, the corporators reside, but by the place where its charter was granted. With reference to inhabitancy, it is considered an inhabitant of the state in which it was incorporated."

Southern R. Co. v. Allison, 47 L.Ed. 1078, 190 U.S. 326, 23 S.Ct. 713.

Section 4165 of the Code of 1930 provides that corporations which exist by virtue of the laws of another state are subject to attachment and garnishment the same as an individual non-resident.

Magna Oil & Ref. Co. v. White Star Ref. Co., 280 F. 52; Foy & Shamwell v. Georgia-Alabama Power Co., 298 F. 643; Louisville, etc., Ry. v. Louisville Trust Co., 174 U.S. 562, 19 S.Ct. 821, 43 L.Ed. 1081; C. W. Dev. Co., Ltd. v. Lewis, 142 Miss. 428, 107 So. 557; I Fletcher Cyc. Corp., page 862; Peterman C. & S. Co. v. Blumenfeld, 156 Miss. 55, 125 So. 548; Elec. Co. v. Elec. Storage Battery Co., 167 Miss. 842, 147 So. 773; Clark v. L. & N. R. Co., 158 Miss. 287, 130 So. 302; Pennsylvania R. R. Co. v. St. Louis, etc., R. R. Co., 30 L.Ed. 84, 118 U.S. 290, 6 S.Ct. 1094.

From the foregoing authorities from this court and other courts is to be found the legal principle that domestication of a foreign corporation does not of itself exempt a foreign corporation from attachment and garnishment on the ground of non-residence.

Section 4165 of the Code of 1930 especially provides for the attachment of corporations which exist under the laws of another state on the ground of non-residence the same as an individual non-resident. The appellee in this case exists under and by virtue of the laws of the State of Tennessee and it is so alleged in the bill of complaint and established or admitted. Therefore, the appellant exists by virtue of the laws of the State of Tennessee and under Section: 4165 is subject to attachment on the ground of non-residence and cannot claim to be exempt therefrom.

N. O. J. & G. N. R. Co. v. Wallace, 50 Miss. 244; C. W. Dev. Co. v. Lewis, 142 Miss. 428.

To exempt appellee from attachment and garnishment on the ground of non-residence would be unconstitutionM and void.

United States Constitution, sec. 1, Art. XIV; Mississippi Constitution of 1890, Sections 14, 24 and 90; Barbour v. Paige Hotel Co., 2 App. Cas. D. C. 174; Jennings v. Idaho R. L. & P, Co., L.R.A. 1915D 115, 26 Idaho 703, 146 P. 101; Power Mfg. Co. v.: Sa unders, 71 L.Ed. 1165, 274 U.S. 490; Bayside Fish Flour Co. v. Gentry, 80 L.Ed. 772, 297 U.S. 422; Liggett Co. v. Baldrige, 73 L.Ed. 204, 278 U.S. 105; Gulf, C. & S. F. R. Co. v. Ellis, 41 L.Ed. 666, 165 U.S. 150, 17 S.Ct. 255; Fountain Park Co. v. Hensler, 155 N.E. 465, 50 A.L.R. 1518; Barbier v. Connolly, 28 L.Ed. 923, 113 U.S. 27, 5 S.Ct. 357; Hing v. Crowley, 28 L.Ed. 1145, 113 U.S. 703, 5 S.Ct. 730; Minneapolis & St. L. R. Co. v. Beckwith, 32 L.Ed. 585, 129 U.S. 26, 9 S.Ct. 207; Goodrich v. Thompson, 118 So. 60; Chicago, etc., R. Co. v. Moss & Co., 60 Miss. 641; Adams v. Standard Oil Co., 53 So. 692, 97 Miss. 879; Lowry v. City of Clarksdale, 122 So. 195, 154 Miss. 155; Toombs v. Sharkey, 106 So. 273, 140 Miss. 676; 25 R. C. L. 815, sec. 66; Pullman v. Lawrence, 22 So. 53, 74 Miss. 782.

Robertson & Robertson, of Jackson, for appellee.

Appellee has complied with all the statutes of Mississippi pertaining to the domestication of corporations, and is, therefore, a domesticated corporation under said laws.

Mississippi recognizes and permits to do business Within its borders three general classes of corporations, organized for pecuniary gain, as follows: 1. Corporations organized in the state, and under its laws; 2. Domesticated corporations; 3. Foreign corporations which remain foreign corporations, but which are licensed to do business in this state.

Sections 4162 and 4163, Code of 1930.

We maintain that appellee is a domesticated corporation and is in the second classification above.

Ewing v. Warren, 144 Miss. 233, 109 So. 601.

Appellant recognized that appellee was and is a domesticated and not a non-resident corporation because it did not have a copy of its process mailed to appellee at the Memphis address, which mailing would have been required to complete the process under Section 4167 of the Code if appellee had not been a domesticated corporation.

Appellee, being a domesticated corporation, was not subject to attachment and garnishment in chancery as a non-resident corporation.

17 Fletcher Cyclopedia Corp., Perm. Add., sec. 8304; 14A C. J. 1231.

Could a corporation organized under the laws of this state be attached or garnished in chancery without bond; It could not. Then, could a corporation entitled to all the rights and privileges of similar corporations incorporated under the laws of this state be attached and garnished in chancery without bond? The appellant 's answer to this question is "yes." Our answer is "no." We confidently believe that this court will, like the lower court, answer it as we have.

14A C J. 1231; Jennings v. Idaho R. L. & P. Co., L.R.A. 1915D 115, 26 Idaho 703, 146 P. 101; Pennsylvania R....