Yoder v. Nu-Enamel Corporation
| Decision Date | 21 November 1941 |
| Docket Number | 31219 |
| Citation | 300 N.W. 840,140 Neb. 585 |
| Parties | EDWIN YODER ET AL., APPELLEES, v. NU-ENAMEL CORPORATION, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: JEFFERSON H BROADY, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. Where a foreign corporation enters the state to transact business therein and fails to designate, as provided by section 24-1201, Comp.St.1929, an agent or agents upon whom legal process may be served as against the corporation, valid service of process may be made against the corporation upon the state auditor without special appointment of such officer as its agent; and such service extends to all actions relating to any transactions by the foreign corporation while in the state, though it may have ceased to do business in or may have withdrawn from the state prior to the bringing of the action.
2. The decision of this court in Schwabe v. American Rural Credits Ass'n, 104 Neb. 46, 175 N.W. 673, is overruled in so far as such decision is in conflict with the decision in this case.
3. A case is not authority for any point not necessary to be passed on in order to decide the cause. Bliss v Beck, 80 Neb. 290, 114 N.W. 162, 16 Ann.Cas. 366.
4. " For court's opinion to be binding as precedent, there must have been application of judicial mind to precise question necessary to determine in order to fix parties' rights." Mutual Benefit Health & Accident Ass'n v. Bowman, 8 Cir., 99 F.2d 856.
Appeal from District Court, Lancaster County; Broady, Judge.
Action by Edwin Yoder and another, partners doing business as the Nu-Enamel Nebraska Company, against the Nu-Enamel Corporation, to recover damages under a contract between defendant and plaintiff. From an adverse judgment, defendant appeals.
Affirmed.
Ziegler, Dunn & Becker and D. L. Manoli, for appellant.
Sterling F. Mutz, contra.
Heard before SIMMONS, C. J., EBERLY, PAINE, MESSMORE and YEAGER, JJ., and FALLOON and ELLIS, District Judges.
This is an action at law to recover a stipulated amount of money pursuant to and under a contract entered into between Nu-Enamel Nebraska Company, one of the plaintiffs, and the Nu-Enamel Corporation of Dover, Delaware, defendant. The issue to be determined is whether or not the district court acquired jurisdiction over the person of the defendant. The issue was properly raised by special appearance, objecting to the jurisdiction of the court. The special appearance was overruled. The defendant answered and preserved the jurisdictional question therein. A jury was waived; trial had to the court on the merits, resulting in a judgment for the plaintiffs in the sum of $ 1,296.80 and costs. Defendant appeals.
The defendant is a Delaware corporation, with its principal place of business at Cleveland, Ohio. It had never qualified in Nebraska or appointed a resident agent for service of process to be had upon it, as required by section 24-1201, Comp. St. 1929. Some time prior to September, 1937, the defendant, engaged in the business of manufacturing and distributing Nu-Enamel paint products, sold from its factory in Ohio some of its merchandise to one Sternberg, who operated three retail stores in Omaha where he sold such products. Sternberg became indebted to defendant for the merchandise furnished. Defendant took possession of the three retail stores, merchandise and equipment as liquidation of the debt. After taking over the stores, defendant operated the business and at the same time endeavored to and did dispose of the stores October 29, 1937, when all of the merchandise, fixtures and appurtenances thereof were transferred to the plaintiffs by contract. The contract contained many provisions with reference to the handling of defendant's products, the length of time the contract was to run, the rights of the respective parties to terminate it, and the advertising displays incident to proper advertising. We deem it unnecessary to set out the contract in full. This action was started May 11, 1940.
Section 24-1201, Comp. St. 1929, the statute involved, provides in part: "Such foreign corporation shall also make and file a certificate * * * appointing an agent or agents in this state, * * * upon whom process, or other legal notice of the commencement of any legal proceeding, or in the prosecution thereof, may be served; and such service of process or of any such other legal notice, as aforesaid upon the auditor of public accounts, or upon any such agent, or agents, shall constitute valid service upon such corporation in all courts of this state, in counties where the cause of action, or some part thereof, arose, or in counties where the contract, or portion thereof entered into by such corporation has been violated or is to be performed." Service of summons was made on the state auditor of public accounts, as provided by the statute.
The defendant, as shown by the record, transacted business in this state without qualifying and without appointing a resident agent. This situation presents the question: Under such circumstances, do the statutes of Nebraska authorize service of summons to be made upon the state auditor of public accounts as against the defendant?
The language in Schwabe v. American Rural Credits Ass'n, 104 Neb. 46, 175 N.W. 673, as follows: "At the time service was attempted the association had never domesticated itself; it had never filed the written authority which the law requires, authorizing the auditor to accept service for it," seemingly supports the defendant's contention that, under such circumstances, the service of process, as had in the instant case, is erroneous. In this connection, this court held in the cases of Buckley v. Advance Rumely Thresher Co., 106 Neb. 214, 183 N.W. 105, and Wilken v. Moorman Mfg. Co., 121 Neb. 1, 235 N.W. 671, in substance, as follows: Where a foreign corporation is doing business in this state, valid service of process may be made against it upon the state auditor, without specific appointment of such officer as its agent. In so holding no mention is made of the language in Schwabe v. American Rural Credits Ass'n, supra, as heretofore stated, on this proposition. This presents a conflict as between the Schwabe case and Wilken v. Moorman Mfg. Co., supra, and Buckley v. Advance Rumely Thresher Co., supra, on this particular point. Such situation warrants the overruling of Schwabe v. American Rural Credits Ass'n, supra, in so far as it is in conflict with the holding in the Buckley and Wilken cases, on the point herein discussed.
The important question presented in the instant case is: Assuming that the state auditor was the agent of the defendant for the purpose of serving process...
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