Swarts v. Christie Grain & Stock Co.

• Decision Date: 09 January 1909
• Docket Number: 3,347.
• Citation: 166 F. 338
• Court: U.S. District Court — Western District of Missouri
• Parties: SWARTS v. CHRISTIE GRAIN & STOCK CO.

166 F. 338

SWARTS v. CHRISTIE GRAIN & STOCK CO.

No. 3,347.

United States Circuit Court, W.D. Missouri, Western Division.

January 9, 1909

Smythe & Smith and G. W. Stubbs, for plaintiff.

Harkless Crysler & Histed, for defendant.

POLLOCK District Judge.

This action was brought by plaintiff against defendant, a Missouri corporation, to recover a second judgment on a judgment rendered in favor of plaintiff and against defendant by the consideration of the district court of the Fourth judicial district of the state of Nebraska, sitting in and for the county of Douglas in that state.

The defense made to this action is that the state court of Nebraska rendering the judgment had no jurisdiction of the person of the defendant, therefore the judgment forming the basis of this action is void and of no force or effect. A jury was waived to try the issues joined, and the case is now before the court for decision on the facts, oral arguments and briefs of counsel.

The first contention made by defendant is that the return of the sheriff making the service of the summons on defendant in the action pending in the Nebraska court, as shown by the judgment roll, does not comply with the requirements of the statutory provisions of Nebraska for the bringing personally before a court of that state a foreign corporation, such as defendant. Therefore, it is contended, the judgment is void. Section 75 of the Code of Civil Procedure of Nebraska provides for personal service on a nonresident corporation having a managing agent within that state, as follows:

'When the defendant is a foreign corporation, having a managing agent in this state, the service may be upon such agent.'

Section 73 of the Code of that state contains the general provision for acquiring jurisdiction over all corporations, domestic or foreign, as follows:

'A summons against a corporation may be served upon the president, mayor, chairman of the board of directors, or trustees, or other chief officer, or if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk or managing agent, or if none of the aforesaid officers can be found, by a copy left at the office or last usual place of business of such corporation.'

The Supreme Court of that state has held this act to apply to both foreign and domestic corporations. Fremont, E. & M.V.R.R. Co. v. N.Y.C. & St. L. Ry. Co., 66 Neb. 159, 92 N.W. 131, 59 L.R.A. 939; Ord Hardware Co. v. J.I. Case Threshing Machine Co., 77 Neb. 847, 110 N.W. 551, 8 L.R.A. (N.S.) 770. The construction placed on this statute by the highest judicial tribunal of the state is binding on the federal courts if the service obtained in pursuance of the act constitutes due process of law, or, in other words, does not violate the federal Constitution. Waters-Pierce Oil Co. v. Texas, 177 U.S. 28, 20 Sup.Ct. 518, 44 L.Ed. 657.

The return of the sheriff on the summons, as found in the judgment roll, reads as follows:

'Received this writ the 6th day of April, 1907, and served the same on the 8th day of April, 1907, on the within named Christie Grain & Stock Company, a corporation, by delivering to Frank E. Gilliland, general agent of said corporation, personally, in Douglas county, Nebraska, a true and duly certified copy of this writ with all the indorsements thereon. No president, vice president, treasurer or other chief officer of said corporation being found in Douglas county, state of Nebraska.

J. W. McDonald, Sheriff. 'Henry Petersen, Deputy.'

The question of the jurisdiction of the state court of Nebraska over the person of the defendant to render the judgment here sought to be enforced must be determined by a comparison of the statutes above quoted with the act performed by the officer of the state court making the service as recited in his return found in the judgment roll.

For, although the recital in the judgment of due service as it there appears would be conclusive on this court in the absence of a showing in the judgment roll itself as to the exact nature of the service made, yet it is quite well established, where the precise nature of the act performed by the officer in making the service is set forth in the judgment roll itself, then the requirements of the law authorizing the service to be made must control, and not the finding of the court rendering the judgment.

A few general observations may tend to elucidate the question here presented as to the validity of the service attacked. At the common law there was no possible method by which the state court of Nebraska could have obtained jurisdiction over the person of the defendant corporation to render the personal judgment here relied upon by plaintiff against it. St Clair v. Cox, 106 U.S. 355, 1 Sup.Ct. 354, 27 L.Ed. 222; Strain v. Chicago Portrait Co. (C.C.) 126 F. 831. When, however, a corporate citizen of one state of the Union goes into another state for the purpose of there transacting the business of the corporation through its officers, agents, employes, and servants there located, it may be required to appear personally before the courts of such state on any terms required by such state to which it has assented as a condition precedent to the right to engage in its corporate business within such state, or it may be required to respond personally to such method of service as the Legislature of such state may in its wisdom provide, so long as the method prescribed by the Legislature constitutes due process of law. Carpenter v. Willard Case Lumber Co. (C.C.) 158 F. 697. Therefore, as at the common law there was no method by which a corporation of one state may be compelled to respond personally in the courts of a foreign state, yet as such foreign corporation may by legislative act be required to come personally before the courts of any state, outside of that of its incorporation, into which it entered for the purpose of transacting its corporate business through officers or agents there located, on such terms and conditions as the Legislature may prescribe, so long as such method constitutes due process of law, it follows, of necessity, the precise method adopted by the lawmaking power must be followed or no valid personal service is made and no jurisdiction is obtained. And, as the court possesses no inherent jurisdiction over such persons, all have the right to rely on the law as enacted being followed before any one as defendant is bound or concluded by a personal judgment rendered against him. That is to say, where the Legislature has the power to say the service of process on one or more of the many different officers and agents of a...