United Missouri River Power Co. v. Wisconsin Bridge & Iron Co.

• Decision Date: 23 December 1911
• Citation: 119 P. 796,44 Mont. 343
• Parties: UNITED MISSOURI RIVER POWER CO. v. WISCONSIN BRIDGE & IRON CO.
• Court: Montana Supreme Court

119 P. 796

44 Mont. 343

UNITED MISSOURI RIVER POWER CO. v. WISCONSIN BRIDGE & IRON CO.

Supreme Court of Montana

December 23, 1911

Appeal from District Court, Lewis and Clark County; J. M. Clements Judge.

Action by the United Missouri River Power Company against the Wisconsin Bridge & Iron Company. From an order quashing a service of summons, plaintiff appeals. Affirmed.

Wm Wallace, Jr., John G. Brown, and R. F. Gaines, for appellant.

Walsh & Nolan and T. J. Walsh, for respondent.

SMITH J.

In September, 1905, the defendant, a Wisconsin corporation entered into a contract with the predecessor in interest of the plaintiff, a New Jersey corporation, for the construction of the steelwork and superstructure of a dam across the Missouri river at Hauserlake, Mont. On April 14, 1908, the dam broke and gave way. On February 23, 1894, the defendant appointed T. H. Kleinschmidt as its statutory agent for the service of process in Montana. This appointment ostensibly continued in force until April 21, 1908, when a certificate of revocation thereof was filed in the office of the Secretary of State and a duplicate certificate in the office of the county clerk and recorder of Lewis and Clark county. On April 13, 1910, plaintiff began this action to recover the sum of $3,590,246.28 damages alleged to have been sustained by reason of the breaking of the dam. Service of summons was made on Kleinschmidt. The district court of Lewis and Clark county, upon proof being made by affidavit of the revocation of Kleinschmidt's appointment as agent, as aforesaid, and also of the fact that since the completion of work under the contract the defendant has done no business in the state entered an order quashing the service of summons. From that order plaintiff has appealed.

Quoting from the brief of counsel for the appellant: "The question presented by this appeal is the force of sections 1 and 2 of Senate Bill 46, Laws 1901, page 151." Section 1 of the act of 1901, supra, reads, in part, as follows: "Such (foreign) corporation *** shall *** also file, *** a certificate *** that said corporation has consented to be sued in the courts of this state, upon all causes of action arising against it in this state, and that service of process may he made upon some person *** whose name and place of business shall be designated in such certificate. And such service, when so made upon such agent shall be valid service on the corporation. ***" Section 2 of the act is now section 4414, Rev. Codes, and reads, in part, as follows: "*** Such designation shall remain in force until the filing in the same offices of a written revocation thereof. ***"

It is argued in behalf of the appellant that if a foreign corporation, after liability incurred, may revoke the authority of its agent to receive service of process, before an action can be commenced, and the injured party thereby "forced, at great expense to go to some other state and possibly to an unfriendly community to litigate a claim which arose in his own state and out of business done under rights acquired under his own state's statutes, the statute is inoperative and of no effect, and such a construction would be contrary to the rule which requires that statutes shall be so construed as to make them operative and effective if possible." It is also contended that the...