State ex rel. Nw. Dev. Corp. v. Gehrz

• Decision Date: 07 February 1939
• Citation: 230 Wis. 412,283 N.W. 827
• Parties: STATE ex rel. NORTHWESTERN DEVELOPMENT CORPORATION v. GEHRZ, Judge, et al.
• Court: Wisconsin Supreme Court

230 Wis. 412

283 N.W. 827

STATE ex rel. NORTHWESTERN DEVELOPMENT CORPORATION

v.GEHRZ, Judge, et al.

Supreme Court of Wisconsin.

Feb. 7, 1939.

Petition by the Northwestern Development Corporation to this court for a writ of prohibition commanding Gustave G. Gehrz, Circuit Judge of the Circuit Court for Milwaukee County, to desist from proceeding further against the petitioner in an action in which the Empire Level Manufacturing Company is the plaintiff, and the petitioner and others are defendants. Writ granted.

This proceeding was instituted by a petition filed in this court by the Northwestern Development Corporation for leave to commence an action for a writ of prohibition commanding Gustave G. Gehrz, Circuit Judge of the Circuit Court for Milwaukee County, and the Empire Level Manufacturing Company to desist from proceeding further against the petitioner in an action pending in that court, wherein the Empire Level Manufacturing Company is plaintiff, and the petitioner and others are defendants. Upon leave granted pursuant to the petition this action was commenced in this court. Thereupon the parties stipulated that the petition should stand as the petition and complaint for the issuance of a writ of prohibition, and “that said petition and complaint be considered demurred to by the respondents herein on the ground that it does not show facts sufficient to warrant the issuance of a peremptory writ of prohibition, and that this matter be determined by the court on this record as it now stands.”Bloodgood, Kemper & Passmore, of Milwaukee (Charles H. Galin, of Milwaukee, of counsel), for petitioner.

Dougherty, Arnold & Kivett, of Milwaukee, for respondents.

FRITZ, Justice.

[1]From the record herein,-consisting of the petition for the writ of prohibition and the exhibits attached thereto,-there appear the following facts, which are admitted by the respondents' demurrer. The Empire Level Manufacturing Company claims that jurisdiction of the Northwestern Development Corporation, a Delaware corporation not licensed to do business in Wisconsin, was obtained by the above-mentioned circuit court action by service at Milwaukee of an amended summons and the complaint on July 5 and on July 21, 1938, respectively, by then and there delivering to and leaving with Meyer L. Schwartz, as the vice-president of that corporation, a copy of the summons and complaint, and an order to show cause returnable on July 26, 1938. On July 25, 1938, Messrs. Bloodgood, Kemper and Passmore, as attorneys for the Northwestern Development Corporation, served notice upon the attorneys for the Empire Level Manufacturing Company that they appeared “especially for the purpose of this motion only to object to the jurisdiction of the court over said defendant and for no other purpose; and that upon the summons and the return thereon, (and upon all the papers and proceedings) on file herein, and upon the annexed affidavits served herewith,” they would move on August 5, 1938, “for an order setting aside and vacating the service of the summons” as to the Northwestern Development Corporation, and that the action be dismissed as to the Northwestern Development Corporation “for the reason that service of said summons and complaint in this action was not made upon” it, “nor upon an authorized officer or agent thereof, and that the attempted service of said summons upon Meyer L. Schwartz as an officer of said corporation is invalid for the reason that said Meyer L. Schwartz was not at the time of said attempted service an officer, agent or employee of said corporation, and that therefore said service does not confer, and said court does not obtain jurisdiction over the person of the Northwestern Development Corporation which does not appear herein generally.” Attached to that notice were affidavits by Meyer L. Schwartz and Charles H. Galin, an attorney for the Northwestern Development Corporation, in which they state that Meyer L. Schwartz was not an officer of that corporation at the time of the attempted service. In addition to matters thus stated, the following facts appear from the petition filed in this court, to-wit: That because of the interval of only three days between the date of the attempted service and the return date of the plaintiff's order to show cause, the petitioner was unable to obtain affidavits from its officers, who reside in Montana, upon which to base a motion to vacate the service of the summons upon its special appearance; that all of its officers at the time of said service were outside the state of Wisconsin and resided near Norris, Montana, and because of the insufficient time to procure their affidavits, the affidavits of Meyer L. Schwartz and Charles H. Galin, as attorney for the corporation, were attached to and made the basis of the motion to quash; that at the time of the attempted service of the summons and complaint on the petitioner, it was not engaged in or doing any business in Wisconsin, and had no officer or agent within the state; that as appeared from the petitioner's books and the minutes of a meeting of its directors, held on the 12th day of January, 1938, Meyer L. Schwartz resigned as vice-president and director, that Fred Schmit was duly elected as his successor, and ever since said date said Meyer L. Schwartz has had no connection with the petitioner and has never owned any of its stock; and that when the order to show cause of the plaintiff, Empire Level Manufacturing Company, came on for hearing before Judge Gehrz on July 26, 1938, he insisted that the petitioner's motion to quash service be heard immediately instead of on August 5, 1938, although its attorney advised the court that it was not prepared to present said motion because there was not sufficient time to procure affidavits from the petitioner's officers or to procure its records from Montana. Thereupon the court, after hearing arguments on petitioner's special appearance, denied its motion to quash “upon the record as it now stands”, but specified that it should have the right of renewing or making a new motion at a later time when proper affidavit as had been secured. An order was entered accordingly on July 26, 1938, which also required the petitioner to deposit certain shares of stock with the Circuit Court for Milwaukee County, Wisconsin. On July 28, 1938, the plaintiff's attorney served upon petitioner's attorney an affidavit to which there was attached a copy of petitioner's annual report, certified to by its secretary and treasurer on December 31, 1937, and filed by it as a Delaware corporation with the Secretary of State of Delaware on January 4, 1938. In that report it was stated that its principal office was at 900 Market Street, Wilmington, Delaware, and Meyer L. Schwartz was listed as its vice-president and a director, with terms expiring November 28, 1938. On August 2, 1938, plaintiff's attorneys again attempted to serve an affidavit and order to show cause upon the petitioner by serving a copy on Meyer L. Schwartz as the alleged vice-president of the petitioner. That order required the petitioner to show cause why its secretary and treasurer, Nathan S. Schwartz, should not submit to an adverse examination personally, and produce the books of said corporation for examination by the plaintiff at Deer Lodge, Montana. On August 4, 1938, the petitioner obtained an order to show cause upon attached affidavits of its president, C. A. Jillson, and Meyer L. Schwartz and its attorney, and also a certified copy of the minutes of a meeting of its board of directors on January 12, 1938. It was recited in that order to show cause that the petitioner was “appearing herein specially for the purpose of this motion only to object to the jurisdiction of the court over the person of the defendant, Northwestern Development Corporation, for the reason that proper service of the summons and other proceedings has not been made upon said corporation, and for no other purpose, said corporation not appearing herein generally.” The order required the plaintiff to show cause on August 19, 1938, “why an order should not be made and entered setting aside and vacating the service of the summons in this action on the defendant, Northwestern Development Corporation, which appears herein specially to object to the jurisdiction of the Court over its person, and why this action, the service of the summons, complaint, order and orders to show cause and all proceedings herein against the Northwestern Development Corporation should not be set aside, vacated and dismissed as to said Northwestern Development Corporation specially appearing herein, for the reason that proper and legal service of the summons and subsequent pleadings and orders was not made upon said Northwestern Development Corporation, and that the Court has not and never has acquired jurisdiction of the person of said Northwestern Development Corporation.

“It is further ordered that pending the hearing herein and until the Court shall have determined whether or not service of said summons and the order to show cause dated August 2, 1938, upon said Northwestern Development Corporation was proper and legal and whether the Court acquired jurisdiction of the person of said corporation, all proceedings herein against the Northwestern Development Corporation pending to obtain the adverse examination of Nathan S. Schwartz as Secretary and Treasurer of the Northwestern Development Corporation and to examine the books and records of said Northwestern Development Corporation, or otherwise, are hereby stayed until the further order of ...