Shickle, Harrison & Howard Iron Co. v. S. L. Wiley Construction Co.

Morse, J.

The plaintiff in this action brought suit against the defendants upon a draft drawn at Richmond, Indiana, by *230 the S. L. Wiley Construction Company, per S. L. Wiley, president, upon the Niles Water Works, at Niles, Michigan, for $2,499, payable to the order of plaintiff four months after date.

Proper service was had upon the drawee, and service was made upon the S. L. Wiley Construction Company by delivering a copy of the declaration, with notice of entry of rule to appear and plead, etc., to Solon L. Wiley, president of said corporation, at the city of Niles on the twentv-second day of July, 1885.

On the thirty-first day of July, 1885, the said corporation defendant filed in the cause a plea in abatement, setting forth that it was a foreign corporation created by and existing under the laws of Massachusetts, having its domicile and principal office at Greenfield, in said State, and that no original writ of summons, nor declaration or other process or legal notice, had been served upon it in this State ; that it has no officer, agent, or attorney in Michigan authorized to receive service of legal process, or to appear for it in legal proceedings in the circuit court for the county of Berrien, where this action was pending, without special direction that none of its officers or agents reside in Michigan, or have any office or place of business therein, and that it has not authorized any agent or any one to appear for it in this action, except for the special purpose of objecting to the jurisdiction of the court.

That Solon L. Wile3r, upon whom the declaration was served, was not, at the time of such service, in the State of Michigan on official business for the said defendant, nor in any official character as the officer of such corporation, nor otherwise than casually and accidentally, and not as representing the defendant; and that he was not 'authorized to receive service, nor to represent it as an officer or otherwise.

This plea was verified by said Solon L.Wiley, who deposes in the jurat that he is president of the S. L. Wiley Construction Company, and makes the affidavit in its behalf and by its direction.

It does not appear from the record that any notice of the *231 filing of this plea was ever served upon plaintiff’s attorney.

August 13,1885, the Niles Water Works pleaded the general issue.

The plaintiff, without paying any attention to this plea of the construction company, proceeded to enter its default, to make it absolute, assess damages, and, upon the trial of the issue made by the Niles Water Works, entered a joint judgment against both defendants.

The S. L. Wiley Construction Company asks a reversal of this judgment, as to it, claiming <no proper service, as stated in its plea, and also alleging that the plaintiff could not proceed, even if the court obtained jurisdiction by the service of the declaration upon Wiley, without first joining issue upon the plea filed by it, or moving to strike it from the files.

In favor of the first proposition we are referred to the case of Newell v. Great Western Railway Co., 19 Mich. 336 . (See note, page 232.) Since that decision the Legislature has provided for suits by and against foreign corporations in this State. 1 The obvious intent-of this statute, in our opinion,, was to remedy the defects in the prior laws, ás indicated in the opinion filed in the Newell Case. There is no dispute in, the present case but that Wiley was president of the corporation at the time the service was made upon him.

We cannot hold, under the statute above referred to, that the officer or agent of the corporation within this State must be here upon official business for his co'rporation, or specially *232 authorized by it to receive service. To do this would be to allow the individual upon whom the service is made to determine in most cases for himself, without fear of successful contradiction, whether, at the particular moment of such service, he was acting as such officer or agent, or as a private person. It would have a tendency to thwart the special purpose and object of the statute, and such we do not thinlc was the intent of the Legislature. The officer or agent must be presumed and held as such for the purposes of service under the statute, and cannot throw off his representative capacity at will, as he would an outer garment, in order to defeat its manifest object.

No doubt but the better practice in this case would have ¡been to have moved to strike this plea from the files. But no notice having been served upon the plaintiff of its filing, and the fact being undisputed and admitted that Wiley was the president of the corporation, and therefore the service good and the plea bad, under our construction of the statute, the proceeding to judgment without noticing the plea was a mere irregularity, doing no harm to defendant, and not ■affecting the jurisdiction of the court.

If the defendant corporation had filed an affidavit of merits, and asked that the default might be opened or the judgment vacated in the court below, there might have been good ground, in the discretion of that court, for granting such an application. But it has contented itself with attacking the jurisdiction of the court on writ of error, and the defect, if any, in the proceedings to judgment after the filing of the plea is one of irregularity in practice, and not one operating in any way upon the jurisdiction.

The judgment is therefore affirmed, with costs.

The other Justices concurred.

Note. — In the case cited, the plaintiff attempted to commence a suit by declaration in the Wayne circuit court against the railway company, a Canadian corporation, service being made on its treasurer in Wayne county. The defendant pleaded to the jurisdiction of the court, averring its foreign corporate character and the non-residence of plaintiff; that it had no officer, agent, or attorney in Michigan authorized to receive service of legal process, or to appear for it in legal proceedings in any court therein, *233 without its special direction and authority, which had not been given, except for the special purpose of objecting to the jurisdiction of the court; that none of its officers resided in said State, nor had any office or place of business therein; that the person served with process was not at the time in Michigan nn official business for defendant, nor in his official character as its treasurer, but casually and accidentally, and that he was not authorized to represent it as such officer or otherwise, nor to receive such service.

The plaintiff demurred, contending that the service was valid under Section 4835, Comp. Laws of 1857. The court [see pages 344-5 of opinion] declined to decide whether the statute was applicable to foreign corporations, assuming, for the purposes of the argument, that it might be resorted to in some cases, but held that if defendant would be bound by service on its treasurer in Michigan in given cases, it could only be when that officer was, at time of such service, representing the corporation in his official character, and that, under the facts as admitted, he had no official status or representative character in this State' at time of such service.

How. Stat. § 8145. — “ Suits may be commenced at law or in equity in. the circuit court for any county of this State where the plaintiff resides, or service of process may be had, and iu cases where the plaintiff is a non-resident, in any county of the State, against any corporation not organized under the laws of this State, in all cases where the cause of action accrues within the State of Michigan, by service of a summons, declaration or chancery- subpcena within the State of Michigan, upon' any officer or agent of the corporation, or upon the conductor of any railroad train, or upon the master of any vessel belonging to and in the service of the corporation against which the cause of action has accrued; Provided, that in all such cases no judgment shall be rendered for sixty days after the commencement of suit; and the plaintiff shall, within thirty days after the commencement of suit, send notice by mail to the corporation defendant at its home office.”.

Sec Maxwell v. Speed, 60 Mich. 36 .