Works v. George B. Swift Co.

• Citation: 100 N.E. 584,53 Ind.App. 630
• Decision Date: 31 January 1913
• Docket Number: No. 7,716.,7,716.
• Parties: BROWN-KETCHAM IRON WORKS v. GEORGE B. SWIFT CO.
• Court: Court of Appeals of Indiana

53 Ind.App. 630

100 N.E. 584

BROWN-KETCHAM IRON WORKS

v.GEORGE B. SWIFT CO.

No. 7,716.¹

Appellate Court of Indiana, Division No. 1.

Jan. 31, 1913.

Appeal from Superior Court, Marion County; Jos. M. Leothus, Judge.

Action by the Brown-Ketcham Iron Works against the George B. Swift Company. Judgment for defendant, and plaintiff appeals. Reversed, with instructions to sustain the demurrer to defendant's plea in abatement, with leave to defendant to amend.R. M. Ketcham and H. S. Landers, both of Indianapolis, for appellant. Lew Wallace, of Indianapolis, for appellee.

HOTTEL, J.

Appellant, an Indiana corporation, brought this action against appellee, an Illinois corporation, to recover a balance alleged to be due it on account of material it furnished appellee.

The complaint is in two paragraphs, the first of which is based on a written contract filed as an exhibit with said complaint, and alleged in effect a refusal on appellee's part to make the payment to appellant for the material it furnished under such contract according to the terms thereof, and alleged that on the 24th day of September, 1906, there was a balance due on said contract of $1,748.23. In the second paragraph it is alleged in substance that the appellee is indebted to appellant in the sum of $1,748.23, being a balance for goods, wares, and materials sold and delivered to appellee at its special instance and request, that demand had been made on appellee for payment of said sum, and said amount remained due and wholly unpaid. Both paragraphs aver in substance that, although appellee is a corporation organized under the laws of the state of Illinois, it had been admitted to transact business within the state of Indiana under and pursuant to the laws of said state, and “had duly designated an agent upon whom service of process might be had, and that for the purpose of this case the defendant was found and was doing business within the state of Indiana.” The appellee entered a special appearance and filed a plea in abatement, to which a demurrer filed by appellant was overruled. A reply of general denial to this plea closed the issues.

The cause was tried by jury, and at the close of all the evidence the court sustained a motion made by appellee for a peremptory instruction directing the jury to find for appellee upon its plea in abatement, to which ruling of the court the appellant at the time excepted. The jury found for the appellee as directed by the court, and thereupon appellant filed its motion and reasons for new trial, which was overruled and exceptions saved. Judgment was entered upon the finding of the jury, that the action abate and that the appellee have and recover of the appellant the costs of the action, to all of which appellant at the time excepted and prayed an appeal to this court.

The errors relied on for reversal are: (1) The court erred in overruling the demurrer of plaintiff (appellant) to defendant's plea in abatement; (2) the court erred in overruling the motion of the plaintiff (appellant) for new trial; (3) the court erred in the judgment it entered.

The first question presented for our consideration is the sufficiency of the plea in abatement as against the demurrer. This plea avers that appellee's appearance is special only, and for the sole purpose of questioning the jurisdiction of the court over its person; that it is an Illinois corporation, engaged solely in the business of general contracting, with its principal and only place of business location and residence in the city of Chicago; that it at no time had any office or agent in the state of Indiana, except only and to the extent and in the manner hereinafter specifically stated; that in December, 1902, appellee had a contract for the construction work upon the Claypool Hotel, in the city of Indianapolis, and had sublet such work to divers subcontractors, which furnished the materials and performed the labor, and that in connection with said contract appellee, under date of December 2, 1902, appointed A. W. Hatch its agent in Indiana, with authority as required by the Indiana foreign corporation law of 1901, and caused the writing containing such appointment to be filed with the Secretary of State of the state of Indiana; that on July 7, 1906, its board of directors, at a meeting regularly convened, decided appellee should not do business in Indiana, and, by resolution duly adopted, canceled, annulled, and revoked the appointment of said A. W. Hatch, and provided that appellee should thereafter maintain no office or agency in said state of Indiana; that thereupon appellee, by its president, made and filed with the Secretary of State of the state of Indiana an affidavit showing that no part of its capital stock was represented by its property located, or business transacted, in the state of Indiana, that it had no property located in said state, and that its appointment of its agent as aforesaid had been and was revoked; that the steps aforesaid were taken by appellee in good faith, for the purpose of terminating the agency aforesaid, for the reason that it was not then engaged, and did not intend to engage, in any business in said state, so as to bring it within the laws of Indiana relating to foreign corporations doing business in said state; that appellee did not remove any property from said state, except in the ordinary course of business as it completed the contract aforesaid, and it has not at any time done, or suffered anything to be done, whereby any person, firm, or corporation in said state, holding any claim against it or its property in said state, was or might be defrauded, hindered, or delayed; that said Secretary of State thereupon issued to it a certificate of revocation as follows: Here follows the certificate, which is a statement, signed by the Secretary of State, showing simply the filing in his office by appellee of “an affidavit revoking the appointment of A. W. Hatch as agent in Indiana for said company, and declaring the intent of the corporation to no longer maintain an office or agent in this state.” Then follow averments showing that since said time appellee has done no business in said state and had no property, office, or agent therein; that the contract sued on was for material, none of which was to be used in Indiana, but all of which was for use in construction work at the city of New Orleans, and that said contract was totally disconnected with any business at any time done by appellee in Indiana; that the summons in this cause was served upon said Hatch on or after February 16, 1907, at a time when he was in no way authorized to receive service of said summons and had no connection with appellee of any character, excepting only that he was then its attorney in respect to certain claims in litigation in said state, which claims have no connection with the contract set out in the complaint.

Appellant urges against the sufficiency of this plea: (1) That it fails in the requirement that it “must be certain to every intent in every particular and must anticipate every possible answer of the adversary.” (2) “That it does not deny that the cause of action arose within this state, which would be a possible answer.” (3) “That it does not deny that the appellee had money, credits, or effects belonging to or due the appellee within this state.” The fourth, fifth, sixth, seventh, and eighth objections present practically the same question, and will be hereafter referred to and discussed.

[1] The first proposition above is amply supported by authority. “The criterion or leading distinction between a plea in abatement and a plea in bar is that the former must not only point out the plaintiff's error, but must show him how it may be corrected, and furnish him with materials for avoiding the same mistake in another suit in regard to the same cause of action, or, in technical language, must give the plaintiff a better writ. *** Certainty of this sort, or ‘to a certain intent in every particular,’ requires the utmost fullness and particularity of statement, as well as the highest attainable accuracy and precision, leaving, on the one hand, nothing to be supplied by intendment or construction, and, on the other, no supposable special answer unobviated.” Needham et al. v. Wright et al., 140 Ind. 190, at page 194, 39 N. E. 510, at page 511;Ohio Oil Co. v. Griest, 30 Ind. App. 84-87, 65 N. E. 534;American Surety Co. of N. Y. v. Souers, 98 N. E. 829;Lechner v. Strauss et al., 98 N. E. 444, and authorities there cited.

[2][3][4][5] As to the second and third propositions above, we find authority in our own state, and other jurisdictions as well, which seems to support appellant's contention, depending, we think, on the theory upon which the plea in abatement proceeds. If the theory of this plea in abatement be that, on account of the withdrawal of appellee from the state and the revocation of the authority of its agent to accept service of process, the courts of this state have been deprived of any jurisdiction of the defendant, and that for this reason this action should abate, then we think that the contention of the appellant that the pleading should contain averments showing that appellee has no money, credits, or effects belonging to or due it in the state, and that the cause of action did not arise within the state of Indiana, is well taken and supported by authority. On the other hand, if the theory of the pleading be that the court has not obtained jurisdiction of the person of the appellee by the service of process had upon Mr. Hatch, and that such service should be set aside and the summons quashed, we think there would be no necessity for the averments insisted on.

The question whether service of process had been had upon an authorized agent of the appellee could be affected in no way by appellee's having or not having money, credits, or effects belonging to or due it within the state; but the existence or nonexistence...