Galveston City Railroad v. Hook

Moran, P. J. We shall consider only the error in sustaining the demurrer to the plea in abatement above set out.

It would not be contended ‘that said plea would not be a good plea to the jurisdiction, had it omitted the statement that Sinclair had sent a telegram to the Minneapolis party saying he would be in Chicago, and while there would receive any proposition from said party for the purchase of the property, intending to report it to said company. We are of opinion that such message sent from Chicago, under the circumstances stated in the plea, was not such an act as brought the corporation of which said Sinclair was president, in legal contemplation within the State, so as to be found within the State for the purpose of the service of process upon it.

The corporation has no place of business within the State, and the president, on whom the process was served, did not come into the State on business of the company, but on his own private business and pleasure. A merely casual offer to receive a proposition relating to the business of the-company is not the transaction of business by an agent in such sense as authorizes the conclusion that the company is transacting its business in this State. To be found within the State, a foreign corporation must have sent its agent, on whom service is made, to the State to conduct its business therein, either continuously or for a time, so as to complete a transaction or an enterprise, or at least charged with the duty of making a particular contract in the State, or negotiating therein for the company. St. Louis Wire Co. v. Barb Wire Co., 332 Fed Rep. 802; Midland Pac. Ry. Co. v. McDermid, 91 Ill. 170 ; Silsbie v. Hotel Co., 30 Ill. App. 204 .

It is insisted that by filing the general issue after the demurrer to the plea in abatement was sustained, the plea in abatement was waived, and Bangor Furnace Co. v. Magill, 108 Illinois, 656, is relied on to sustain this contention.

This question was carefully considered by the court, and the precise point decided in Delahay v. Clement, 3 Scam. 200 . It is there shown that on sustaining a plaintiff’s demurrer to a plea in abatement, the judgment is quod respondeat ouster, and that in complying with this order to answer over, a party can not be said to abandon his plea or waive his right to a correct decision upon it, and the distinction is pointed out between such a case and one where, after a plea in bar is held bad on demurrer, the defendant asks leave to amend his plea.

The point was again considered by the Supreme Court in Weld v. Hubbard, 11 Ill. 573 , and Delahy v. Clement, cited and followed.

It is well settled by common law decisions that the judgment. after demurrer sustained to plea in abatement was to plead over to the merits, and that pleading to the merits at all before a judgment of respondeat ouster would be a waiver of the plea in abatement; but no case can be found holding that plea to the merits after respondeat ouster waived any error in sustaining the demurrer to the plea in abatement. The conclusion in Delahy v. Clement was reasoned out on the principles of common law pleading, and the point remained settled in this State for a period of forty years.

We are not willing to believe that the Supreme Court intended to reverse the rule in what was said in Bangor Furnace Co. v. Magill. From the statement in the opinion in said case, it does not appear that there bad been a judgment of respondeat ouster after sustaining a demurrer to a plea in abatement. The statement is that “ plea in abatement, and motions calling in question the sufficiency of the service, were filed or made in the trial court, and the decisions of the court touching them are assigned for error.” Of course, if the defendant filed the general issue voluntarily, and not in obedience to a judgment of the court to plead over, his act “ was a waiver of any defects in the service of summons, and it would even obviate the necessity of the service of any process at all.” The point now being considered could not have been presented by the record in the case. The court would not have overturned a point so well settled in practice, and twice directly ruled upon in its own decisions, without alluding to the prior cases and distinguishing or overruling them.

We conclude that Delahy v. Clement and Wild v. Hubbard are untouched by what is said in Bangor Furnace Co. v. Magill, and the rule announced by those cases is supported by Harkness v. Hyde, 98 U. S. 476 .

The contention that the plea in abatement was waived by defendants asking leave to amend it after the demurrer to it was sustained, which leave was denied, is no more tenable than the first position of defendant in error.

The point is directly decided in Drake v. Drake, 83 Ill. 526 , and Midland Pac. Ry. v. McDermid, supra.

For the error in sustaining the demurrer to the plea in abatement, the judgment of the Superior Court must be reversed and the case remanded.

Reversed and remanded.