Terry Packing Co v. Southern Express Co. *

Citation118 S.E. 628
Decision Date12 March 1921
Docket Number(No. 34.)
PartiesTERRY PACKING CO. v. SOUTHERN EXPRESS CO. *
CourtUnited States State Supreme Court of South Carolina

Appeal from Richland County Court; M. S. Whaley, Judge.

Action by the Terry Packing Company against the Southern Express Company. From an order refusing to set aside the service, defendant appeals. Affirmed.

The order of Judge Whaley, referred to in the opinion, follows:

Plaintiff commenced his actions, four in number, against the defendant, upon complaints alleging that the plaintiff is a corporation organized under the laws of South Carolina, having its principal place of business at Columbia, in said state, with branch places of business, one in Charleston under the name of Terry Fish Company, and one in Columbia under the name of Columbia Fish & Ice Company; that the defendant is a corporation organized under the laws of the state of Georgia and domesticated under the laws of South Carolina, and in and by its written stipulation or declaration filed in the office of the secretary of state of South Carolina, February 2, 1918, 1114 Lady street, Columbia, S. C, was designated by the defendant as the place of location of said defendant in South Carolina, at which all legal papers may be served, which declaration has not been revoked, and at the times mentioned in the complaints the defendant engaged in business in. South Carolina as a common carrier for hire. All of the causes of action are based upon C. O. D. shipments received by defendant from plaintiff at Columbia and at Charleston prior to July 1, 1918. The summons and complaints were served on the defendant, Southern Express Company, by leaving copies thereof on the premises in the city of Columbia known as 1114 Lady street.

The defendant, through its counsel, appearing solely for the purpose of making the motion, moved to set aside the service of the summons in all four actions supporting the motion by the affidavit of W. M. Barrett, pres ident of Southern Express Company, setting forth, among other things, that Southern Express Company has not maintained an office at 1114 Lady street, Columbia, S. C., or elsewhere in South Carolina since July 1, 1918, and that it has not engaged in business in South Carolina or had any agents therein since that time, and made reference to the proclamation of the President of the United States and the articles of incorporation of American Rail way Express Company.

The plaintiff appeared with counsel and objected to such an order and maintained that the service was valid and filed written objections as follows: "That the provisions of law relating to foreign corporations as embodied in the Code of 1912, and acts amendatory thereof, and especially chapter 44 of volume 1, Code of Laws of South Carolina, were enacted to protect the citizens of South Carolina on transactions had within this state with foreign corporations by requiring foreign corporations to become domesticated under its laws and to prevent such corporations from putting themselves beyond the reach of the courts of this state and it appearing: (1) That defendant did domesticate under the laws of South Carolina and engaged in business therein as a common carrier for hire. (2) That the complaints herein are (a) upon causes of action which arose while defendant was engaged in business in South Carolina, and prior to government control, (b) upon transactions which took place in the state of South Carolina, and (c) with a citizen of South Carolina. (3) That the last place designated by defendant as the place in this state at which all legal papers may be served is 1114 Lady street, Columbia, S. C. Therefore, until defendant has discharged its liabilities arising out of its transactions in South Carolina and while doing business there and with the citizens of that state, it cannot depart therefrom and require that it be sued in another state on such causes of action, but the courts of South Carolina have jurisdiction over defendant for the purpose of hearing and determining actions arising out of such transactions, and having been served in the manner provided by statute and at the place designated by defendant the service should not be set aside."

The objections were supported by a certificate from the secretary of state, setting forth that, by its declaration filed in his office February 2, 1918, the defendant designated 1114 Lady street, Columbia, S. C, as the place in this state at which all legal papers may be served on it and a further certificate from the secretary of state to the effect that on the 9th day of August, 1894, defendant in compliance with an act of the General Assembly approved December 20, 1893, and now chapter 44 of volume 1 of Code of 1912, filed its declaration designating its principal place of business in South Carolina and the agent of the company at that point, together with certified copies of its charter and articles of association, and that annual statements as required by said act were filed by defendant for the years 1916, 1917, and 1918, among others, and the secretary of state further certified that application for withdrawal was filed by Southern Express Company March 6, 1920. Therewas also filed by plaintiff the affidavit of its president, which was in effect a verification of the complaints.

It is not disputed that the transactions out of which the causes of action arose were had between plaintiff and defendant (a) within the state of South Carolina, (b) while defendant was actively engaged in business in South Carolina, and (c) with a citizen and resident of South Carolina. Nor is it disputed that defendant, a foreign corporation, had properly domesticated itself under the laws of South Carolina, and was operating in South Carolina under the license so granted it at the time the C. O. D. shipments in question were delivered to it. At the time these suits were commenced, however, defendant was not doing business in this state and had no agents therein.

The issue is: Was such constructive service valid? It will be remembered that service Was made by leaving the summons at the place of business designated by defendant pursuant to section 2665 of the Code as follows:

"Sec. 2665.—Stipulation to be filedLocation—Service of-Legal Papers.—Any and every such foreign corporation owning property or doing business in this state on the 1st day of July, 1894, shall, within sixty days after the 1st day of July, 1894, and any and every such foreign corporation which shall acquire property or commence to do business in this state after the 1st day of July, 1894, shall, within sixty days after so acquiring any property or commencing to do business in this state, file in the secretary of state's office in this state a written stipulation or declaration, in due form, designating some place within this state as the principal place of business or place of location of said corporation in this state at which all legal papers may be served on said corporation by the delivery of the same to any officer, agent or employee of said corporation found thereon; or if none such be found thereon, then by leaving copies of the same on the premises, and that such services shall have like force and effect in all respects as service upon citizens of this state found within the limits of the same."

The latest decision of the Supreme Court of the United States is that of Chipman v. Jeffrey, 251 U. S. 373, 40 Sup. Ct. 172, 64 L. Ed. 314, in which the court considers a statute of New York substantially the same as ours. The court pointed out with great particularity that the contract was made in Wisconsin and was not to be performed in New York. The domestication statutes are intended as a protection against transactions had within its borders. The court set aside the service in the Chipman Case, holding that in order to bind a foreign corporation by such constructive service, under a statute which fails to provide as a condition precedent to doing business in that state, that the foreign corporation must agree that service on the agent would be binding after it left the state, the transaction must have been one which took place in New York. That view does not conflict with the contention of the plaintiff in this action. It would be a very hard rule to require a defendant to defend in a forum other than that in which its home office is located, on a contract made in the home office or in a forum in which the contract was not to be performed, even though it did have an agent there whose power could not be revoked, and that was the ruling of the court in Chipman v. Jeffrey.

The plain purpose of chapter 14 was to provide a means whereby the courts of this state would continue to have jurisdiction of all causes of action arising out of transactions had within the state between its citizens and 9 foreign corporation, which, after having created these obligations, suddenly withdraws from the state and removes its property. So long as a foreign corporation is doing business in the state and has property therein, jurisdiction over it may be obtained by serving its agents or by attachment of its property, and resort to the domestication statute is not necessary to gain jurisdiction. It has been held that statutes of this nature do not, when acted upon by foreign corporations, constitute a contract between the state and such foreign corporations, which is impaired by subsequent legislation. They serve to create what may be termed a status. Conn. Mut. v. Spratley, 172 U. S. 602, 19 Sup. Ct. 308, 43 L. Ed. 569.

The case of Mutual Reserve Fund Life Association v. Phelps, 190 U. S. 147, 23 Sup. Ct....

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6 cases
  • Terry Packing Co v. Southern Ex-press Co.
    • United States
    • United States State Supreme Court of South Carolina
    • 21 Junio 1927
    ...Railway Express Company. Judgments for plaintiff, and defendant last named appeals. Judgment affirmed in each case. See, also, 125 S. C. 198, 118 S. E. 628. The following is the report of the Interstate Commerce Commission, referred to in the opinion: By application filed March 22, 1920, as......
  • Foster v. Morrison, 16922
    • United States
    • United States State Supreme Court of South Carolina
    • 1 Noviembre 1954
    ...such service after the corporation's withdrawal from the State, where the cause of action had arisen here. Terry Packing Co. v. Southern Express Co., 125 S.C. 198, 118 S.E. 628. But where the cause of action, as here, did not arise out of the corporation's business within this State, the ac......
  • Tumstall v. The Lerner Shops, 13176.
    • United States
    • United States State Supreme Court of South Carolina
    • 11 Junio 1931
    ......Section 390, vol. 1 of the 1922 Code; Terry" Packing Co. v. Southern Express Co., 125 S. C. 198, 118 S. E. 628.   \xC2"......
  • Terry Packing Co. v. Southern Express Co.
    • United States
    • United States State Supreme Court of South Carolina
    • 12 Marzo 1921
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