Vicksburg, S. & P. R. Co. v. Forcheimer

• Decision Date: 19 February 1917
• Docket Number: 18829
• Parties: VICKSBURG S. & P. R. CO. v. FORCHEIMER
• Court: Mississippi Supreme Court

74 So. 418

113 Miss. 531

VICKSBURG S. & P. R. CO. v. FORCHEIMER

No. 18829

Supreme Court of Mississippi

February 19, 1917

Division B

APPEAL from the circuit court of Warren county, HON. E. L. BRIEN Judge.

Suit by Mrs. Fannie Forcheimer against the Vicksburg, Shreveport &amp Pacific Railroad Company. From a judgment for plaintiff defendant appeals.

This suit was begun by declaration in the circuit court of Warren county, Miss., against the defendant, a Louisiana corporation, with an office and agent at Vicksburg, Warren county, Miss., and doing an interstate business only between Vicksburg, Miss., and points in the state of Louisiana.

Affirmed.

R. H. & J. H. Thompson and Fulton Thompson, for appellant.

Let it be observed in the outset that if the circuit court of Warren county were without jurisdiction of the person of the defendant its special and limited appearance for the purpose of objection to the court's assumption of jurisdiction, did not confer jurisdiction. The case does not fall within the provisions of our Code, Mississippi Code of 1906, sections 3646, 3947, the one section providing that an appearance by a defendant by motion to quash process shall be an appearance to the merits, and the other that a defendant who appeals from a judgment and secures its reversal because of a defective service of process shall be deemed to have entered his appearance to the cause in the court from which the appeal was taken. These statutes relate only to defective process and to defective service of process; they have no relation to the question now before the court; nor does any other Mississippi statute regulate or narrow the right of a person not subject to suit in this state to enter a special and limited appearance made alone to object to jurisdiction of his person, the right to enter a special appearance, except as narrowed by the Code sections cited, is just as broad in Mississippi at this time as it was at common law; in truth, the Code sections are a legislative recognition of the right, since a statutory modification of a rule is itself a legislative recognition of the rule in so far as the statute does not change it. Farquar v. Alabama, etc., Ry. Co., 78 Miss. 193, second paragraph of the syllabus.

Our main proposition. We submit to the court that under the Fourteenth Amendment to the Constitution of the United States, providing that no state shall "deprive any person of life, liberty or property, without due process of law," it is not in the power of this state to subject a foreign corporation to a suit brought by a citizen and resident of another state upon a cause of action arising from a tort committed in that other state, in no way connected with any business done by the foreign corporation in this state.

That a foreign corporation is a person and a citizen of the state under whose laws it was created cannot be doubted; nor can it be reasonably questioned that the wrongful subjection of a person to a suit, judgment and execution is the taking of his property, where due process of law is denied, within constitutional protection. These propositions do not need citation of authority in their maintenance.

We base our main proposition on two recent decisions of the United States supreme court to which the careful attention of this court is requested. Old Wayne Life Association v. McDonough, 204 U.S. 8, decided January 7, 1907; Simon v. The Southern Ry. Co., 236 U.S. 115, decided January 25, 1915; Southern Ry. Co. v. Simon, 184 F. 959.

It is true in the case at bar that the defendant, after the plaintiff's demurrers to its pleas had been sustained, and after it had duly objected and excepted (see judgment on demurrers, record p. 9) to the judgments on its pleas, entered a general appearance, yet according to well recognized practice, the general appearance, being forced and not voluntary, was not a waiver or abandonment by the defendant of its special pleas and defenses made of record under its special and limited appearance.

B. W. Griffith, Jr. and Brunini & Hirsch, for appellee.

Before proceeding to an enumeration of the cases bearing upon this matter, we desire to set out the statute of Mississippi which pertain to the same, as follows: Section 3946 of the Mississippi Code of 1906, is as follows:

"Motion to quash process and appearance. Where the summons or citation, or the service thereof, is quashed on motion of the defendant, the case may be continued for the term, but defendant shall be deemed to have entered his appearance to the succeeding term of the court."

This provision has been held constitutional by the supreme court of the United States in the case of York v. Texas, 34 Law Ed. 604, and also in the case of Kauffman v. Wooters, 34 Law Ed. 962. Under this provision, the constitutionality of which is thus upheld, the defendant submitted itself to the personal jurisdiction of the courts of Mississippi by its personal appearance, even though same were a special appearance and even apart from the fact that it was duly and regularly served with summons.

Chapter 123 of the Mississippi Laws of 1908, at page 132, provides as follows: "Foreign corporations found doing business in this state subject to suit here. Any corporation claiming existence under the laws of any other state or of any other country foreign to the United States, found doing business in this state, shall be subject to suit here to the same extent that corporations of this state are, whether the cause of action accrued in this state or not."

As stated by the defendant, on page 13 of its original Brief, the Mississippi Code of 1906, section 3932, provides that in suits against railroad companies, process may be served upon any agent of the defendant and Id., section 708 provides that, "Actions against any Railroad Corporation may be brought in any county in which any part of such railroad may be."

The supreme court of our state has passed upon the issue raised here so decisively that were it not for the Federal question which the defendant is presenting we should merely call attention to the two leading Mississippi cases upon this subject, and rest upon those very ably reasoned opinions. N. O. J. & G. N. R. R. Co. v. Wallace, 50 Miss. 244; Pullman v. Lawrence, 74 Miss. 782; Chicago, St. Louis & New Orleans Railroad Co. v. Doyle, 70 Miss. 977; Illinois Central Railroad Co. v. William Crudup, Admr., 63 Miss. 291; McMaster v. Illinois Central Railroad Co., 65 Miss. 764; Saxony Mills v. Waggener & Co., 47 So. 899 (Miss. 1909.)

In the very recent case of Fisher v. Pac. Mut. Life Insurance Co., 72 So. 846 (Miss. 1916); Railroad Co. v. Swanson, 92 Miss. 485; Standard Oil Co. v. State, 107 Miss. 377.

Having examined the holdings of the supreme court of our state upon this question, let us turn our attention to the rulings of other states in which it has likewise been presented. Barnes v. Union Central Life Insurance Company, decided in Kentucky in 1916, 182 S.W. 169; South v. Continent. Cas. Co., 185 S.W. 858; Watson v. Richmond and D. R. Co., 18 S.E. 306 (Georgia, 1892); Reeves v. Southern Railway Company, 49 S.E. 674 (Ga., 1905); V. C. R. I. & P. Ry. Co. 65 S.W. 27 (Texas, 1901); Hawkins v. Fidelity & Cas. Co., 51 S.E. 724 (Ga., 1905); Reeves v. Southern Railway Co., 46 S.E. 674, 121 Ga. 561.

As stated above, if it were not for the Federal question raised by the defendant herein, there would be nothing to argue before our supreme court.

We wish now, however, to present this matter from the viewpoint of the Federal courts, and hereafter, practically all of the authorities which we shall cite, shall be from the United States courts. Lafayette Insurance Co. v. French, 15 Lawyers' Ed. 451; St. Clair v. Cox, 27 Lawyers' Ed. 222; Barrows S. S. Co. v. Kane, 42 Lawyers' Ed., 964; Denver & R. G. R. R. Co. v. Roller, 100 F. 738, 79 L. R. A. 77; Nickerson v. Boiler Co., 223 F. 843; St. Clair v. Cox, 106 U.S. 350, 1 S.Ct. 354, 27 L.Ed. 222, 12. R. C. L. 104; Goldey v. Morning News, 39 Lawyers' Ed. 517; Kendall v. American Auto Loom Co., 49 Lawyers' Ed. 1133; Reeves v. Southern Railway Co., 49 S.E. 674; Schmidlapp v. Ins. Co., 71 Ga. 246; Associated Press v. United Press, 104 Ga. 51, 29 S.E. 869; Reynolds Co. v. Martin, 116 Ga. 495, 42 S.E. 796; Eingartner v. Steel Co., 94 Wis. 70, 68 N.W. 664, 34 L. R. A. 503, 59 Am. St. Rep. 859; Nelson v. R. Co., 88 Va. 971, 14 S.E. 838, 15 L. R. A. 583; Haggin v. De Paris (L. R.), 23 Q. B. D. 519; Lhoneux v. Banking Corporation (L. R.), 33 Ch. Div. 446; Dennick v. R. R. Co., 103 U.S. 11, 18, 26 L.Ed. 439; St. Clair v. Cox, 106 U.S. 350, 354, 1 S.Ct. 354, 27 L.Ed. 222; Barrow Steamship Co. v. Kane, 170 U.S. 109, 18 S.Ct. 526, 42 L.Ed. 222; Barrow Steamship Co. v. Kane, 170 U.S. 109, 18 S.Ct. 526, 42 L.Ed. 964; Knight v. R. Co., 108 Pa. 250, 56 Am. Rep. 200. See, also, Reno on Non-residents, sec. 44, et seq., Minor's Conflict of Laws, sec. 192, Pol. Code 1895, sec. 9; American Colonization Society v. Gartrell, 23 Ga. 448.

OPINION

STEVENS, J.

The only point relied upon by appellant is the contention that the circuit court of Warren county had no jurisdiction of this suit, and that the assumption of jurisdiction by the trial court was a denial to appellant of due process of law contrary to the Fourteenth Amendment to the federal Constitution. The question was raised by special pleas, charging that the plaintiff in the declaration was a resident citizen of the state of Illinois; that the defendant, appellant, here, was a corporation created by the laws of Louisiana; and that the defendant had not entered the state of Mississippi for the purpose of doing an intrastate business, but, on the contrary, was a non-resident corporation. A demurrer was interposed to these special pleas, and by the court sus...