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allowed the motion and overruled the demur-, the First National Bank of Kingsport, on rer, but, under the statute applicable to the the ground of the defendant's nonresidence. subject, granted an appeal to this court. At this point it is necessary that we set out

The defendant company is a foreign cor- the motion to dismiss, which was made in poration that has not complied with our the chancery court. That motion reads: statutes authorizing such corporations to do "Come all the defendants, and appearing spebusiness in the state, but its president and cially for the purpose of denying the jurisdicsecretary and treasurer and several of its National Bank, and moved the court to dismiss

tion of the court in this cause, except First directors, all mentioned in the bill, reside in the bill in this cause as to them, because it apTipton county, of this state. It has no of-pears from the bill and record in the cause that fice or place of business in Sullivan county, i this court has not jurisdiction of the persons of but has property there, consisting of about bill that said company is a foreign corporation

these defendants, because it is alleged in the $10,000 on deposit in the First National Bank with officers and agents in Tipton county, Tenn., of Kingsport in that county, which bank is upon whom process can be served, and that the made a defendant.

other defendants are residents of Tipton county, The complainant sues on a contract for county where said officers and agents of said De

Tenn., and this suit must be brought in the personal services which will presently be Camp Glass Casket Company reside, or more particularly mentioned.

found, and in the county where said other de The business of the corporation, as defendants reside or are found.” scribed in the bill, was the making of glass

[1] The predicate of the motion is that, burial caskets and also other articles of where there is an office or agency in any glass. It contemplated building a factory county of the state, the foreign corporation for these purposes at Kingsport and had ob to which it belongs must be sued there, and tained an option on ten acres of silicate cannot be proceeded against by attachment lands. Its purpose was to construct a plant of its property in lieu of personal service in that would cost about $75,000. It employed any other county where its property may be the complainant as its general superintend

found. ent, as he alleges, for the period of two years

It is not a sound proposition that because at the price of $5,000 a year, payable in in- suit may be brought and personal service stallments as he should desire, and at the had on an agent of a nonresident corporaend of each year he was to have a certain tion, in one or more counties of this state, proportion of the stock. The bill alleges, in where it has an office or agency, on causes of addition to the foregoing matters, that the action growing out of or connected with the defendant company was a “foreign invest- business of such corporation, an action may ment company,” and that it had been engag- not be conimenced against it, on those or othed in the sale of its stock in Sullivan county, er causes of action, by original attachment “and perhaps other counties in this state." in another county where it has no such office After alleging that the defendant company

or agency, but in which it has property locathad not complied with our laws for the do- ed. The reverse is true. To hold differently mestication of foreign corporations, the bill would, in our judgment, be a perversion of continued:

our statutes, and would greatly narrow the “But it has complied with the act of Septem- remedies of our citizens against nonresident ber 27, 1913, being chapter 31 of the printed corporations. A nonresident corporation acts of said year, and familiarly known as the might own real or personal property, or both, *Blue Sky Law.'

in many counties of the state, with an office Among other requirements of the statute or agency in only one. It would be unreareferred to, such corporations as it applies sonable to require a citizen of the state havto were required to file with the Secretary ing a demand against such nonresident to go of State an authorization to accept service to a distant part of the state, to bring his of process when suit should be brought in suit, when there is property in his own counany county of the state. The defendant com- ty out of which satisfaction might be had. pany filed such authorization, and on process Indeed, such a requirement would make it being sent to him, directed to the sheriu of necessary for the citizen, before bringing his Sullivan county, where the bill was filed, the attachment suit, to make inquiry in every Secretary of State acknowledged service in county of the state for the purpose of ascerthe name of the defendant company. This taining whether his nonresident debtor had is the hrst ground on which the complainant an office or agency located in any one of the insists that the court acquired jurisdiction of counties. It does not appear why he should the defendant company. The chancellor held be subjected to that inconvenience and exthat the act of 1913 referred to did not apply pense. There is nothing in our statutes to to corporations of the class to which the de- / justify such an imposition. fendant belongs. The first question suggest In Shannon's Code (Thompson's Edition) & ed is whether this decision of the chancellor 4515, it is provided that: was correct. This question we pretermit as "In actions commenced by the attachment of unnecessary to a decision of the cause. property without personal service of process, The complainant's chief claim to effective suit brought in any county where the real prop

the attachment may be sued out or jurisdiction over the defendant is based on erty, or any portion of it, lies, or where any his attachment of its funds in the hands of part of the personal property may be found."

*

*

Section 5211 declares:

600, 603, et seq. A gloss, or interpretative “Any person having a debt or demand due at addition has been added by the court by conthe commencement of an action

may struction, to the effect that in the county sue out an attachment at law or in equity, where such office or agency exists a suit canagainst the property of a debtor or defendant in the following cases: (1) Where the debtor or de- not be brought by original attachment, on fendant resides out of the state."

the ground of nonresidence, thereby to obThese two sections lay down the general tain jurisdiction of the person of the derule for obtaining effective jurisdiction of fendant in lieu of personal service of prononresident defendants; that is, by attach- cess, but that the action must be in personam, ment of their properties in any county of process must be served on the officer or agent the state where it may be found. We now mentioned or referred to in these statutes. reach another class of cases, those covered Green v. Snyder, 114 Tenn. 101, 84 S. W. by sections 4539 to 4541, inclusive. This class 808. This case is referred to by counsel for is one in which a suit may be brought against defendant as authority for the broader doca corporation, either resident or nonresident trine that, where an office or agency exists (Coke & Coal Co. v. Southern Steel Co., 123 anywhere in the state, the plaintiff or comTenn. 429, 131 S. W. 988, 31 L. R. A. (N. S.] plainant must resort to that county, and 278), in the county where the company has there bring his suit, and he is precluded its chief office, by service of process on cer- from instituting an original attachment protain designated officers or agents in a pre ceeding, based on the ground of nonresiscribed order of precedence. Then comes the dence, in some other county where he has Acts of 1859–60, C. 89, now embodied in found property of the nonresident defendant. Shannon's Code (Thompson's Edition) $ 4542. The language of the opinion is broad, we conThis established a new class of cases, viz. cede; but it must be construed in connection those in which "a corporation, company, or with the facts which the court had before individual, has an office or agency or resi- its mind. These facts were that the nondent director, in any county other than that resident, at the time the cause of action in which the chief officer or principal re arose and continuously thereafter, mainsides." As to these it is provided:

tained an office and agency in the county in "The service of process may be made on any which the attachment suit was subsequently agent or clerk employed therein in all actions brought. It was on these facts the court brought in such county against said company growing out of the business of, or connected held that the plaintiff should have obtained with, said companies' or principal's business." personal service on the resident agent, and

The residue of the section contains a lim- that as he could have obtained such service itation on its scope, expressed as follows:

in that county he could not there maintain “But this section shall apply only to cases

an attachment proceeding for nonresidence where the suit is brought in such counties in in lieu of such personal service. We are which such agency, resident director, or office is referred to Turcott v. Railroad, 101 Tenn. located.”

102, 45 S. W. 1067, 40 L. R. A. 768, 70 Am. That is to say, it shall not forbid cases St. Rep. 661, as an opposing authority. The covered by the preceding sections (4539 4511), proposition maintained in that case was, nor original attachment suits brought in simply, that where a railroad corporation, other counties where there is no office or chartered in a foreign state, had carried on agency, and where property of a nonresident its business in Tennessee for a series of defendant is found. Under the authority con- years, and kept an office or agency in this ferred by these four sections (4539-4542), any state during all that time, it could have been one who has a lawful demand against a sued here, and jurisdiction obtained by servcorporation, resident or nonresident, grow-ice on its agent, notwithstanding the fact ing out of or connected with the business of that it had not filed its charter here as resuch corporation, may bring his suit in the quired by law, and that one who had a cause county where the office or agency is main- of action against it and permitted the period tained, and secure jurisdiction of it by per- of limitation to elapse before suing could not sonal service of process on the designated avoid the bar on the ground that the defendofficer or agent. The right is not confined to ant was in the state in violation of law, matters growing out of a particular office and technically a nonresident from the date or agency; it is broad enough to embrace any of its entry. Manifestly this case has no right of action growing out of the business. bearing. It should be remarked that the Section 4516 (section 2811 of Code 1858) ap action which was held barred was brought parently confines the right to causes of ac- in Shelby county where the railroad company tion growing out of the particular office or had for years maintained its aforesaid agency, but this has been construed in con- agency. nection with the amending Acts of 1859-60, To present as comprehensive a view as we supra, so that the broad language of the lat. can, in the limited space at our disposal, of ter (“growing out of the business of, or con- the phase of our attachment laws which we nected with, said company or principal's have just discussed, it will not be amiss to business”) expresses the commanding rule. refer again to the case of Coke & Coal Co. Toppins v. Railroad Co., 5 Lea (73 Tenn.) Iv. Steel Co., 123 Tenn. 428, 131 S. W. 988,

31 L. R. A. (N. S.) 278. The court there had, Sup. Ct. 245, 57 L Ed. 486, Ann. Cas. under examination the question whether an 1915B, 77. original attachment on the ground of non- [2, 3] In addition to the main question residence could be sued out, and the defend-above considered, and which was the only ant's property seized, in lieu of personal one presented by defendant's counsel, or service of process, where it appeared that passed upon in the court below, in respect the defendant, a foreign corporation, had of the attachment and the jurisdiction which complied with our statutes prescribing the the complainant contended that he had obconditions on which such corporations were tained thereby, the point is now made in this permitted to do business here, and had estab-court that there was no proper levy of the lished an office and agency in Hamilton attachment writ because, as defendants aver, county, where the suit was brought, and had no garnishment notice in writing was left there, for a number of years, carried on its with the defendant First National Bank of business. It was held that by such compli- Kingsport, but there was only a reading of ance the foreign corporation had, by the ex

the attachment writ itself to the president press terms of our statutes, become domes- of the bank. Leaving out of view the fact ticated, and must be proceeded against as

that the bank was made a party defendant a domestic corporation, and was not subject

to the bill, and appeared in court when the to attachment in the form attempted.

case was heard, although it did not join in Section 2549 of Shannon's Code (Thomp- further fact that an injunction writ was

the motion, as shown by the decree, and the son's Edition) presents the case of a foreign served on the bank which gave it all needed corporation that has complied with our stat- notice for its protection, forbidding it to pay utes but has no office or agency in this state. defendant (and thus impounding the money It is provided that such corporation may be in a manner fully equivalent to a garnishproceeded against by attachment in the man- ment [Pennington v. Fourth National Bank, ner laid down in the section.

243 U. S. 269, 273, 37 Sup. Ct. 282, 61 L. There is still another statute to which we Ed. 713, 715, and note 2, L. R. A. 1917F, may advert, Acts of 1887, c. 226. This con- 1159]), and the fact that the bill itself in cerns the case of a foreign corporation not addition contained the fullest notice, and domesticated and which has neither property having in mind that it does not appear that nor a localized business in this state, but has a copy of the bill had been served on the transacted, in the state, some matter of busi- bank at the time the decree was rendered, ness out of which a cause of action has aris- and without passing on the question whethen. This statute is reproduced in Shannon's er the failure to serve a separate notice on Code (Thompson's Edition), at sections 4543– the bank, customary in garnishment cases at 4516, inclusive. This statute provides for law, would be a fatal defect (aside from Pena form of substitutionary service which is nington v. Fourth National Bank, supra), or unnecessary to refer to here more particu- whether a copy of the bill, together with a larly.

subpæna to answer, would be equivalent in It is believed that the foregoing discussion chancery to such customary notice at law, presents a fairly adequate view of the sev- and likewise not deciding whether the stateeral methods by which foreign corporations ment of the officer in his return on the atmay be sued in our state. It is apparent tachment writ that he had not only served that, as the defendant company was a non

the writ on the president of the bank, but resident corporation owning property locat- had attached the fund in the bank, might be ed in Sullivan county, a debt due from the treated as evidence that notice had been left defendant bank to it (Dillingham v. Insur- with the bank-we say without considering ance Co., 120 Tenn. 302, 108 S. W. 1148, 16 these matters, or their effect, but merely L. R. A. [N. S.] 220), it was subject to be stating them as' matters appearing in the proceeded against in that county by original record, it is clear that no such objection was attachment levied on that debt, and it is

made to the attachment in the lower court

as is now made in this court. On this ground immaterial that it had officers and direc

we decline to consider it. If the point had tors who resided in Tipton county, this state. been made in the chancery court, any irIt was not necessary that the suit should regularity could have been at once, and eashave been brought in the latter county. In- ily, corrected, or compliance with any missdeed, we do not see how the corporation ing technicality readily effected. It is incould have been brought before the court by dubitably clear, from the very full decree of service upon the resident directors in Tip- the chancellor, that the only point presented ton county, since it does not appear from the to him, on this head, by the defendants, was bill that it was at that time doing any busi- that inasmuch as the bill showed on its fare ness in Tennessee. Toledo Railways & L. (that there were officers and directors of tae Co. v. Hill, 244 U. S. 49, 37 Sup. Ct. 591, company residing in Tipton county, this 61 L. Ed. 982, 987; International Harvester state, the suit could have been brought only Co. v. Kentucky, 231 l'. S. 579, 585, 34 Sup. there, where personal service of process could Ct. 944, 58 L. Ed. 1479, 1482; St. Louis S. have been obtained, and that there could be, W. R. Co. v. Alexander, 227 U. S. 218, 33 'under the circumstances stated, no suit

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brought in another county by an original at- 1 Waiving a decision of the legal question,
tachment levied on the property of the de we may add that we have no case in our
fendant company in that county, based on state where it has arisen. We have numer-
the ground of nonresidence. Both sides, in ous cases that arose between vendor and ven-
the chancery court, treated the attachment dee, under subsection 4 of our statute of
writ as lawfully levied; the contest was frauds on the subject of the sale of lands,
only as to its effect, or the rights conferred and the making of leases for a longer term
by such levy. We shall so treat the contro- than one year. Shannon's Code (Thomp-
versy here. It would be unfair to the com- son's Edition) $ 3142, subsec. 4. It has been
plainant to do otherwise. A different course uniformly held, in these cases, that it is suffi-
would have all the effect of an unlawful sur-cient for the vendor to sign, and that he may
prise. Although the general rule is that on enforce the contract against the vendee,
appeals in chancery the trial is de novo, this Some of the same cases apply to leases. The
does not cover mere technicalities of pro- cases under subsection 4 are so numerous,
cedure, but applies only to the hearing on and so well-known to the profession, that
· the merits without regard to the chancel- they need not be cited. We have cases
lor's decision on the facts of the case, as arising under subsection 5 of the same stat-
distinguished from the rule obtaining at ute, concerning agreements or contracts not
law, on appeal, that if there is any evidence to be performed within the space of one
to sustain the trial judge in a case tried be- year from the making thereof. In none of
fore him his judgment will be affirmed. these cases was there any question made, or

The same observations cover the point now suggestion, as to the need of the signature of
first made here that there was no publica- both parties. These cases are: Leinau v.
tion for the defendants. We add that be- Smart, 11 Humph. (30 Tenn.) 308; Deaton v.
fore there was time for publication, after Tenn. Coal & R. Co., 12 Heisk. (59 Tenn.)
the levy of the writ, the defendants appear- 650; Gregory v. Underhill, 6 Lea (74 Tenn.)
ed in court and made the motion to dismiss, 207; Railroad Co. v. Staub, 7 Lea (75 Tenn.)
which we have just considered.

397; Railroad v. Hayden, 116 Tenn. 672, 94 The defendants, other than the company, S. W. 910. The question has been decided that is, the officers and directors were made both ways, in other jurisdictions. That both defendants in their personal capacity for the need not sign, see Smith v. Neal, 2 C. B. (N. purpose of obtaining alternative relief S.) 67; Reuss v. Picksley, 4 Hurlst. & C. against them. Their motion to dismiss is 588; Vogel v. Pekoc, 157 Ill. 339, 341, 42 the same as that of the company, and rests N. E. 386, 30 L. R. A. 391; Raphael v. Harton no other ground than that the company man, 87 Ill. App. 634; Sellers v. Greer, 172 was not properly in court. That point hav- | Ill. 549, 50 N. E. 246, 40 L. R. A. 589; Chase ing been decided adversely to their conten v. City of Lowell, 7 Gray (Mass.) 33; Ives tion, the motion must be decided against v. Hazard et al., 4 R. I. 14, 67 Am. Dec. 500; them, as well as against the company.

Himrod Furnace Co. v. Cleveland & M. R. Co., [4] The motion having been disallowed, the 22 Ohio St. 451, 459; Kearby v. Hopkins, 14 defendants must now be treated as having Tex. Civ. App. 166, 36 S. W. 506; Martin v. made their personal appearance in court by Roberts, 57 Tex. 564, 568. Cases to the conthe filing of the demurrer.

trary are Wilkinson v. Heavenrich, 58 Mich. [5] The ground of the demurrer is that the 574, 26 N. W. 139, 55 Am. Rep. 708; Co-operabill shows, on its face, that the contract was tive Telegraph Co. v. Katus, 140 Mich. 367, not reduced to writing as required by the 103 N. W. 814, 112 Am. St. Rep. 414; Adams statute of frauds. The contention is that it v. Harrington Hotel Co., 154 Mich. 198, 117 should have been signed by both parties, that N. W. 551, 19 L. R. A. (N. S.) 919; Houser is, by the company, the employer, and by the v. Hobart, 22 Idaho, 735, 127 Pac. 997, 43 L. complainant, the employé; that, not having R. A. (N. S.) 410. See comment on the last been so signed, it was void and unenforceable. case in note appended to it in 43 L. R. A.

The contract consists of a letter written (N. S.) 410. by the company to the complainant, offering We may add that a strong analogy to cases him employment for two years, as its gen- arising under subsection 5 may be found in eral superintendent, for a consideration there- those of our cases which arose under that in mentioned. The letter was written April clause of subsection 4, which applies to leases 4th. Complainant alleges in the bill that he for a longer period than one year. We beaccepted it on April 13th. Several letters lieve it has been the uniform practice, in our written later in the month to the company by state, for lessors only to sign, notwithstandthe complainant, and one in June of the same ing the fact that leases very often contain year, fully recognize the contract as binding numerous affirmative covenants on the part on him. Without affirming or denying the of the lessee. Practically the universal opinproposition of law to the effect that both ion of the members of our bar is that such must sign a contract of the kind appearing in leases, signed only by the lessor, when delivthis case, we are of opinion that complain-ered to and accepted by the lessee, are good, ant's letters, just referred to, sufficiently meet and enforceable against the latter although any requirement for his acceptance in writ. not signed by him. We would not hold difing, if any such legal necessity exists. ferently at this late date. It has been uni

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versally considered in this state that the Geo. H. West, of Chattanooga, for E. Waacceptance of such a lease, either verbally terhouse. Rankin & Frazier, of Chattaor by conduct, would complete the contract nooga, for Sterchi Bros. Furniture Co. between the lessor and lessee and would make it binding and enforceable on both. It WILLIAMS, J. Sterchi Bros. Furniture is difficult to perceive why the analogy would Company, defendant in error, brought suit not be controlling in the kind of a contract against Waterhouse on a note in the sum of we now have before us; but, as stated, it is $1,287.14. In the declaration it was averred unnecessary to authoritatively decide the that: question.

The sum "was due by a promissory note hero The result is the decree of the chancellor to the court shown, made by Dayton Furniture is affirmed, and the cause remanded for fur- Company to plaintiff, of which note defendant

was indorser.” ther proceedings.

The declaration was demurred to, but the question discussed below was not raised by

the demurrer. On the demurrer being over-, WATERHOUSE v. STERCHI BROS. FUR

ruled, the case was tried before the cirNITURE CO.

cuit judge without the intervention of a (Supreme Court of Tennessee. Feb. 11, 1918.) jury, and he rendered judgment against Wa1. BILLS AND NOTES O 414 INDORSER BE

terhouse, who appealed to the Court of Civil FORE DELIVERY-NOTICE OF PROTEST.

Appeals. That court affirmed the judgment. One who indorses a note before delivery is It appears that the defendant moved in arentitled to notice of protest.

rest of judgment on the ground: 2. PLEADING 310 WRITTEN INSTRU

"The declaration avers that defendant is an MENT—"PROFERT"-DEMURRER.

indorser of the note sued on, of which the plainThe mere profert of a note upon which an tiff is payee, but fails to allege that notice of action is founded does not make it a part of the dishonor was ever given defendant as such indeclaration, when the declaration is tested by dorser, or that defendant had waived said nodemurrer, "profert" being a formula in pleading, tice.” whereby the pleader professes to bring into court an instrument to be shown to the court

The contention of the Sterchi Bros. Furniand his adversary.

ture Company is that the note was indorsed [Ed. Note.-For other definitions, see Words by Waterhouse before delivery, and that, if and Phrases, First and Second Series, Profert.) a bill of exceptions had been preserved by 3. PLEADING @ 306 WRITINGS PROFERT Waterhouse, as there was not, it would -OYER.

have shown the note with an indorsement on Where declaration contains profert of note the back thereof above Waterhouse's name, sued on, and oyer asked by defendant is granted, the note becomes part of the declaration. as follows: 4. PLEADING C306 PROFERT AND OYER

“Protest, notice of dishonor and presentation EFFECT.

is waived." If an element essential to the existence of a Such a note appears in the transcript but cause of action be omitted from the declaration not identified as a part of the declaration or containing profert, and oyer be craved, the defect will be cured if the instrument supplies of any bill of exceptions. or corrects the omission.

The main assignment of error in this 5. JUDGMENT Om 263(1)--MOTION IN ARREST-court by Waterhouse is that the motion in GROUNDS.

arrest should have been sustained. Where declaration averred that sum "was [1] The indorser of a note thus irregularly due by a promissory note here to the court indorsed before delivery is entitled to notice shown,

of which note defendant was indorser,” and proof showed that the indorse- of protest. Pharr v. Stevens, 124 Tenn. 669, ment contained waiver of protest, notice of dis- | 139 S. W. 730. honor and presentation by indorser, indorser's

In Knott v. Hicks, 2 Humph. (21 Tenn.) motion in arrest could not be granted in view of Acts 1911, c. 32 (Thomp. Shun. Code, ş 49021). 162, where the action was on a promissory providing that no judgment shall be set aside for note against indorsers, and there was no any error in procedure, unless in the opinion averment of notice of dishonor having been of the court, after an examination of the entire given to the indorsers, and no averment setrecord, it shall affirmatively appear that the error affected the result of the trial.

ting forth a legal excuse for the failure to

do 6. APPEAL AND ERROR 934(2) PRESUMP

so, it was held that the omission in the TIONS--JUDGMENT.

declaration was subject to a motion in arWhere a bill of exceptions incorporating the rest, in that no cause of action whatever proof adduced was not preserved, the Supreme was set forth; the omission being one that Court must assume that there was sufficient evidence to support the judgment rendered.

was not cured by verdict. See, also, Rail

road v. Maxwell, 113 Tenn. 464, 82 S. W. Error to Circuit CourtRhea County; | 1137, and cases cited. Frank L. Lynch, Judge.

We are persuaded that notwithstanding Suit by the Sterchi Brothers Furniture this rule, the indorser cannot succeed on his Company against E. Waterhouse. Judgment motion in arrest. A distinction must be for plaintiff was aflirmed by the Court of taken between that ruling and the pending Civil Appeals, and defendant brings error. case if it be true or if it must be assumed Affirmed.

to be true that the note contract with its

For othe: cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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