Strom v. Mont. Cent. Ry. Co.

• Decision Date: 14 November 1900
• Parties: STROM v. MONTANA CENT. RY. CO.
• Court: Minnesota Supreme Court

81 Minn. 346

84 N.W. 46

STROM

v.MONTANA CENT. RY. CO.

Supreme Court of Minnesota.

Nov. 14, 1900.

Appeal from district court, Ramsey county; George L. Bunn, Judge.

Action by John Strom against the Montana Central Railway Company. From an order denying a motion to dismiss the action, defendant appeals. Reversed.

Syllabus by the Court

1. Gen. St. 1894, § 5659, providing for the examination of an adverse party as if under cross-examination, construed, and held that it applies to the trial of any civil action involving an issue of fact; also, to any proceeding involving such an issue which the parties, as a matter of right, are entitled to have heard on oral testimony.

2. A party is not entitled, as a matter of right, to have a motion involving an issue of fact heard on oral testimony, and to call his adversary for cross-examination. Ordinarily such testimony ought not to be received on the hearing of such motion, but the trial court in exceptional cases may, in its discretion, permit the hearing of a motion on oral testimony of witnesses, and permit the examination of an adverse party, under the statute, as if under cross-examination.

3. Gen. St. 1894, § 5200, relating to service of process on foreign corporations, construed, and held that, where a cause of action against such a corporation arises in another state, the courts of this state cannot acquire jurisdiction of the corporation in such an action unless it has property of some substantial value within the state, which is of a character to justify a reasonable probability that the creditor can secure something from a sale thereof that can be applied as a payment on his demand.

4. Evidence considered, and held that it does not sustain the finding of the trial court to the effect that the defendant had such property within this state when the summons was served upon it. W. E. Dodge, for appellant.

Briggs & Morrison, for respondent.

START, C. J.

The defendant is a foreign corporation organized and operating a railway line in the state of Montana, and this action was brought against it in the district court of the county of Ramsey, Minn., to recover damages for personal injuries alleged to have been sustained in the first-named state by its negligence. The summons and complaint were served on the treasurer of the defendant, who resided in the city of St. Paul, and there kept and maintained his office as such treasurer. Thereupon the defendant appeared specially, and upon the affidavit of its treasurer to the effect that it was a foreign corporation, and its railway was entirely within the state of Montana, and that it owned and possessed no property of any kind whatever in the state of Minnesota, and that the alleged cause of action arose in the state of Montana, moved the court to dismiss the action because the court had no jurisdiction over it. The motion was opposed on counter affidavits by the plaintiff, and further, on the hearing of the motion, the trial court, on the application of the plaintiff and over defendant's objection, ordered and directed that the defendant's treasurer, Mr. Edward Sawyer, appear and testify orally as to whether the defendant had any property in this state, to which ruling the defendant duly excepted. Upon such oral testimony and affidavits the trial court found as a fact that the defendant had property within this state at the time of the service of the summons upon it, and, from an order denying its motion to dismiss, the defendant appealed. The record presents two questions for our decision. First. Did the trial court err in its ruling as to the examination of Mr. Sawyer as a witness on the hearing of the motion? Second. Is its finding that the defendant had property in this state sustained by the evidence?

1. The first question involves a construction of Gen. St. 1894, § 5659, which is in these words: ‘A party to the record of any civil action or proceeding, or a person for whose immediate benefit such action or proceeding is prosecuted or defended, or the directors, officers, superintendent or managing agent of any corporation which is a party to the record in such action or proceedings, may be examined upon the trial thereof as if under cross examination, at the instance of the adverse parties or any of them; and for that purpose may be compelled, in the same manner and subject to the same rules for examination as any other witness, to testify; but the party calling for such examination shall not be concluded thereby, but may rebut it by counter testimony.’ The defendant claims that this section authorizes the enforced appearance of an adverse party to testify as if under cross-examination only upon the trial of a civil action; hence the trial court erred in requiring the defendant's treasurer to so testify on the hearing of the motion. This construction gives no effect to the word ‘proceeding,’ as used in this statute. In its most comprehensive sense, the term ‘proceeding’ includes every step taken in a civil action, except the pleadings. It is clear that the term is not used in this statute in this broad sense, and equally clear that it is not used as the synonym of ‘civil action.’ The statute is a remedial one, and must be construed with reasonable...