Syracuse Trust Company v. Keller
Decision Date | 21 November 1932 |
Citation | 35 Del. 304,165 A. 327 |
Court | Delaware Superior Court |
Parties | SYRACUSE TRUST COMPANY, a corporation of New York, Executor of the Last Will and Testament of John Card, deceased, v. ANNA V. KELLER and INTERSTATE TRANSIT, INC., a corporation of the State of Ohio. SYRACUSE TRUST COMPANY, a corporation of New York, Executor of the Last Will and Testament of John Card, deceased, v. HOWARD WILLIAMS and STEWART SMITH. SYRACUSE TRUST COMPANY, a corporation of New York, Executor of the Last Will and Testament of John Card, deceased, v. ANDREW A. KELLER and INTERSTATE TRANSIT, INC., a corporation of the State of Ohio |
Superior Court for New Castle County, Nos. 145 and 146 January Term, 1932, and 129, March Term, 1932.
Leave to appear specially for the purpose of moving to quash the summons and to vacate the Sheriff's return in each case.
The above suits arose out of a collision between a motor bus and motor truck at Glasgow in New Castle County, Delaware, on the sixteenth day of November, 1930.
John Card, the deceased, was a passenger in the bus and died as a result of the accident. All of the defendants were non-residents, and service was, therefore, made upon the Secretary of State as provided by Section 2 of Chapter 225 Volume 35, Laws of Delaware.
The defendants, Stewart Smith, the driver of the bus, and Interstate Transit, Inc., the owner of the bus, were permitted to appear specially for the purpose of moving to quash the writs of summons and to vacate the Sheriff's returns thereon because of alleged invalidity of service.
The motions of Interstate Transit, Inc., to quash the service of process in the action of Syracuse Trust Company, as Executor designated as No. 145, January Term, 1932; and in the action of the same company designated as No. 129, March Term, 1932, were based on the following reasons:
1. That the return receipts filed with the declaration in these causes and signed "Interstate Transit, Inc., (addressee) by Helen McClure (addressee's agent)," were not the defendant's return receipts within the meaning of Section 2, c. 225, Vol. 35, Laws of Delaware. That this was true because Interstate Transit, Inc., was a corporation of the State of Ohio; that it was adjudged insolvent and a general receiver was appointed for it by the Western Division of the United States District Court for the Southern District of Ohio, on October 5, 1931, and, therefore, prior to the commencement of these actions against it.
2. That Elmer J. Borz was appointed Receiver of the said Interstate Transit, Inc., and that by virtue of the powers vested in him by the decree of the District Court of Ohio, by which he was appointed, these actions should have been brought against him, as such receiver, and cannot be maintained against the corporation. That in any event the assets of Interstate Transit, Inc., through its receiver, are held in custodia legis by the United States District Court for the Southern District of Ohio and that no suit can be brought against that corporation without leave granted by that Court.
In the action of Syracuse Trust Company against the defendant, Stewart Smith, designated as No. 146 to January Term, 1932, the attorney for Smith moved to quash the service of process because of the failure of the plaintiff to file with its declaration any return receipt for the registered letter required to be sent to Smith under the provisions of Chapter 225, Vol. 35, Laws of Delaware. In making this motion he did not deny that a copy of the process and the notice required by the Statute had been sent by registered mail to Smith's supposed or last known address. It appeared, however, that the letter in question was not received by Smith, but that, on the contrary, it was returned by the Post Office Department with the notation on it that the addressee had moved from the address to which the letter was sent and that his present whereabouts were unknown.
It was not denied by the plaintiff that the Ohio receivership was a general receivership where title as well as possession of all the corporate property and assets was vested in the receiver by virtue of his appointment.
Under the decree of the Court appointing the receiver all creditors were enjoined and restrained from instituting or prosecuting or continuing the prosecuting of any suits at law or actions, or proceedings in equity or admiralty against the defendant in any court of law or equity or admiralty, and the receiver was authorized and empowered to institute, prosecute and defend, compromise, adjust, intervene in or become a party to suits, actions, proceedings at law, etc.
The defendant's motion to vacate the Sheriff's return of service on Interstate Transit, Inc., in No. 145, January Term, 1932, and in No. 129, March Term, 1932, is refused; and in No. 146, January Term, 1932, in which Stewart Smith is a party defendant the motion is sustained.
John Biggs, Jr., for plaintiff.
James R. Morford for Interstate Transit, Inc., and Stewart Smith, defendants.
The argument of defendant in cases 145 and 129 is mainly to the point that a suit cannot be maintained against a corporation after a general receiver has been appointed therefor. We are unable to see what this contention has to do with the service of process, the validity of which is attacked. Special appearance by a defendant is, as we understand it, for the purpose of showing that the service was invalid, and not that the plaintiff had sued the wrong party.
What questions can be raised under a special appearance? In 4 Corpus Juris, at 1316, it is said:
"An appearance is special where it is made for the purpose of objecting to the jurisdiction of the Court over the person of the defendant because of want of process, because of defects in the process or in the service thereof, because the process is void or illegal, or because the action was brought in the wrong county or judicial district."
Generally speaking, it may be said that special appearance is entered for the purpose of showing lack of jurisdiction.
The suits in question were brought against the corporation and not against the receiver, and the real question before the Court under the special appearance of defendant, is whether legal service of process was made on the party sued.
It is not denied by the defendant that a letter containing the information required by the statute to be given the defendant was sent by the plaintiff to the defendant by registered mail to the defendant's address, and there received by one Helen McClure, who claimed to represent the defendant and who gave a receipt for the letter in the following language:
This receipt was sent by due course of mail to the plaintiff who filed it with the declaration.
It is not claimed by the defendant that the registered letter the plaintiff is required to send to the defendant must be received by the defendant personally; it may be received and receipted for by its agent, and such a receipt, given to the Post Office Department, is binding on the principal. It is not denied that Helen McClure was the agent or representative of the defendant corporation, and authorized to receive registered mail addressed to the defendant at the time the receipt was given. It is not denied that said letter for which a receipt was given by Helen McClure was received by the defendant corporation, which was still in existence notwithstanding the receivership. The defendant is here, under special appearance, contesting the legality of the service because a proper receipt for the letter was not filed with the declaration.
In the case of Shushereba v. Ames, 255 N.Y. 490, 175 N.E. 187, 188, where the statute involved was very similar to our own, the Court said:
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