State ex rel. Northwestern Engineering Co. v. District Court of Eighth Judicial Dist., Cascade County

• Decision Date: 28 January 1943
• Docket Number: 8380.
• Citation: 133 P.2d 594,114 Mont. 179
• Parties: STATE ex rel. NORTHWESTERN ENGINEERING CO. v. DISTRICT COURT OF EIGHTH JUDICIAL DISTRICT, CASCADE COUNTY et al.
• Court: Montana Supreme Court

133 P.2d 594

114 Mont. 179

STATE ex rel. NORTHWESTERN ENGINEERING CO. v. DISTRICT COURT OF EIGHTH JUDICIAL DISTRICT, CASCADE COUNTY et al.

No. 8380.

Supreme Court of Montana

January 28, 1943

Original proceeding by the State of Montana on the relation of the Northwestern Engineering Company against the District Court of the Eighth Judicial District of the State of Montana in and for the County of Cascade, and C. F. Holt, judge thereof for writ of supervisory control to annul an order refusing to quash service of summons.

Writ issued, but petition denied in part.

Hall & Alexander, of Great Falls, for relator.

Murch & Wuerthner, of Great Falls, for respondents.

ERICKSON Justice.

This is an original proceeding in which the relator, the Northwestern Engineering Company, seeks a writ of supervisory control to annul an order of the Cascade county court, which, by its order, refused to quash the service of summons in a suit naming the relator a party defendant.

The relator is being sued upon a tort claim. A complaint was filed alleging "that the plaintiff has not sufficient information with which to form a belief as to whether the defendant Northwestern Engineering Company is a corporation a partnership, an unincorporated association or individuals doing business under said firm name and title ***." A summons was issued and served according to the sheriff's return as follows: "That I personally served the within Summons issued on the first day of Sep., 1942, upon Northwestern Engineering Co., one of the defendants named therein by delivering a copy of said Summons and Complaint to E. M. Donhowe personally in the said county of Cascade to the managing and Business Agent of said Company Cascade County Mont."

Relator's argument is predicated upon the requirements of section 9111 Revised Codes, as amended by Chapter 186 of the Laws of 1939. It is there provided, among other things, that service of summons must be personal unless the defendant is a foreign corporation doing business in this state. If so, service may be had upon the managing or business agent, cashier, or secretary who is within the state.

It is contended by relator that its motion to quash should have been granted because at the time its attorney filed the motion to quash the service of summons there was nothing before the court to show that the defendant was in fact a foreign corporation, or that it was doing business in the state. These requirements, relator points out, are necessary before service on an agent would be effective to submit the defendant to the jurisdiction of the court.

The relator further contends that the record, at the time of the motion to quash, showed affirmatively that the defendant was not a corporation. To support this contention it points to the fact that in the sheriff's return above quoted the word "corporation" is stricken out. This fact, it is argued, coupled with the allegation in the motion to quash that the defendant "was and is not a joint stock company or association," affirmatively shows that the defendant is not within that class described by section 9111, Revised Codes, as such as may be served by serving an agent. That allegation in the motion is, of course, a negative pregnant and, standing alone, would indicate that defendant is a corporation.

The relator has asked this court to annul this order of the lower court because the plaintiff has not shown the defendant (relator) to be a corporation doing business in Montana. It is true that the allegation of the complaint as to the capacity of the defendant is tantamount to no allegation, yet throughout the relator is referred to as the Northwestern Engineering "Company." The sheriff's return also refers to the defendant as a "company." We think this use of the word "company" makes out a sufficient prima facie showing that the defendant is a corporation to withstand a motion to quash which does...