Underwood v. Brook Mays & Co

• Citation: 146 So. 503
• Decision Date: 06 March 1933
• Docket Number: 4376
• Parties: UNDERWOOD v. BROOK MAYS & CO
• Court: Court of Appeal of Louisiana (US)

146 So. 503

UNDERWOOD v. BROOK MAYS & CO

No. 4376

Court of Appeal of Louisiana, Second Circuit.

March 6, 1933

Henry F. Turner and John G. Gibbs, both of Shreveport, for appellant.

Wilson & Abramson, of Shreveport, for appellee.

OPINION

TALIAFERRO Judge.

This is an action in tort. Plaintiff sues to recover from defendant, a commercial copartnership, damages to the amount of $ 1,275 for the unlawful and malicious entry of defendant's agents and employees into his home, in the city of Shreveport, and the removal of his piano therefrom without his knowledge or consent. The citation in the case was directed to "Brook Mays & Co.," and was served on Henry K. Wellborn, its local manager. In limine defendant filed exception to the citation, wherein it is alleged:

"That your exceptor is a partnership composed of Brook Mays and Leonard Mays, both of whom are residents of the City of Dallas and State of Texas and both of whom are non-residents of the State of Louisiana, and that the said H. K. Wellborn is without any right or authority whatsoever to be served with the petition and citation addressed to your exceptor herein."

The prayer is that the "exception to the citation be sustained and that the citation herein made upon H. K Wellborn be declared illegal, null and void insofar as it attempts to bind your exceptor."

A note of evidence was taken on trial of this exception, but it is not in the record. However, we are favored with a written opinion of the trial judge who sustained the exception and relieved defendant from further answer until legally cited. It is from this judgment that the present appeal is prosecuted.

There is no dispute about the facts of the case. These appear from the following excerpt taken from the opinion of the lower court, viz.:

"Evidence was taken on the exception and showed that the partners lived in Dallas, Texas; that they had a store in Dallas belonging to the partnership which was the main store; that the partnership maintains two stores in Louisiana, one in Monroe and one in Shreveport; that H. K. Wellborn is manager of the local store; that he is of full age and was served in the local store, both of the partners being absent at the time."

These findings of fact are sufficient to enable us to pass upon the sole question presented by the appeal, which is: Can a non-resident commercial partnership, with a branch retail store in this state, whose copartners are all nonresidents thereof, be brought into the court of the domicile of said branch business by service of citation on the manager thereof, during the absence of the partners from the state? In other words, under the facts of this case, as disclosed from the findings of the lower court, may such partnership only be legally cited through personal service on one or both of its members, while in the jurisdiction of the court?

The lower court held that the case of Aikmann v. Sanderson &amp Porter, 122 La. 265, 47 So. 600, was decisive of this issue, and followed that decision. That case involved an action ex delicto. The defendant was an ordinary partnership whose members were all nonresidents of Louisiana. Service was made on one not a partner and who, the record disclosed, was not authorized to receive or accept service of citation for the partnership. The relation of this person to the partnership is not disclosed by the opinion beyond his statement that he had been representing the firm here with respect to such engineering business as they instructed him to attend to. We assume, as the contrary does not appear, that the defendant had not established any office, headquarters, or place of business in this state indicative of an intention to permanently engage in the line of business for which the partnership was formed. The court held:

"Residents of other states cannot be brought into the courts of Louisiana by citations served on persons representing them here for business purposes, but shown to be without authority to receive or accept such service."

Another case cited by the lower court, in discussing the involved question, is that of Cornille & DeBlonde et al. v. R. G Dun & Co., 143...