Cobbey v. State Journal Co.

110 N.W. 643, 77 Neb. 619, 1906 Neb. LEXIS 153
CourtNebraska Supreme Court
DecidedDecember 7, 1906
DocketNo. 14,122
StatusPublished
Cited by10 cases

This text of 110 N.W. 643 (Cobbey v. State Journal Co.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cobbey v. State Journal Co., 110 N.W. 643, 77 Neb. 619, 1906 Neb. LEXIS 153 (Neb. 1906).

Opinions

Letton, J.

Tbe plaintiff in error brought this action in the district court for Gage county against the defendants in error, jointly, to recover damages for an alleged unlawful conspiracy by them for the malicious prosecution of an injunction suit. The defendant Stonebraker was the only defendant served with summons in that county, but a summons was issued to Lancaster county and served therein upon the other defendants. These defendants, the State Journal Company and the Nebraska State Journal Association, are corporations organized under the laws of this state, each having its principal place of business in Lancaster county and having no place of business in Gage county. The corporations appeared separately and objected to the jurisdiction of the court over their persons. The objections were sustained, and the suit dismissed as to them. The plaintiff seeks by this proceeding to review the judgment of dismissal.

The question for determination is whether, when an action is rightly brought in any county, a summons may be issued to another county and served upon a domestic' corporation, or whether the provisions of section 55 of the code are exclusive as to the venue of actions against domestic corporations, whether sued alone or jointly. Section 55 is as follows: “An action other than one of those mentioned in the first three sections of this title, against a corporation created by the laws of this state, may be brought in the county in which it is situated, or has its principal office or place of business; but if such corporation be an insurance company, the action may be brought in the county where the cause of action, or some part thereof, arose,” “The first three sections” referred [621]*621to have reference to real estate. Sections 54, 56, 57, 58 and 59 refer to actions for specific canses and against specific individuals and corporations, the provisions of none of these sections having; reference to an action of the nature of this one. Section 60 provides: “Every other action must be brought in the county in Avliich the defendant, or some one of the defendants resides, or may be summoned.” All of those sections from 51 to 60 inclusive are found under title IV of the code, referring to “the county in which actions are to be brought.” Section 65, found under title V, which is entitled “Commencement of a Civil Action,” is as follows: “Where the action is rightly brought in any county, according to the provisions of title IV, a summons shall be issued to any other county, against any one or more of the defendants, at the plaintiff’s request.”

Plaintiff in error contends that; this action, having been rightly brought in Gage county against- the defendant Stonebraker, a summons was properly issued from that county to Lancaster county for service upon the other defendants; while defendants in error insist that under section 55 no jurisdiction in such an action as this can be had over a domestic corporation, other than insurance companies, in a county other than that in which it is situated or has its principal office or place of business. Section 15, art. Ill of the constitution, provides: “The legislature shall not pass local or special laws in any of the following cases, that is to say: * * granting to any corporation, association, or individual any special or exclusive privileges, immunity, or franchise whatever.” Section 3, art. XI5, provides: “All corporations may sue and be sued in like cases as natural persons.” Section 4117, Ann. St., provides that corporations may have power “to sue and be sued, to complain and defend in courts of law and equity”; and it has been held that the general provisions of the code authorizing a confession of judgment by any person are by reason of these provisions applicable to corporations. Solomon v. Schneider, [622]*62256 Neb. 680. It seems apparent that the purpose of the makers of the organic law and of the legislature was to confer no greater or higher privileges upon corporations, with respect to immunity from suit than are conferred upon natural persons, and that in the eye of the law a corporation is regarded, so far as liability to sue and be sued is concerned, the same as an ordinary individual. 10 Cyc. 1333. . So that, in proceeding to the consideration of the various sections of the statute bearing upon the question, that construction should be given which, without imposing undue burdens upon domestic corporations, would most nearly assimilate their condition, in respect to liability to suit, to that of natural persons. It may be well to notice in this connection that this is the first time this question has been presented to the court for consideration, and that it has not been an uncommon' practice for actions to be brought against individuals and corporations, service to be had upon the individual, and a summons sent to another county for the corporation. This practice of itself, of course, would constitute no reason for setting aside a plain statutory provision, but, in a matter as to which the statute is ambiguous and requires construction, the fact of acquiescence by the profession in the practice for many year's is worthy of consideration. In construing statutes, all provisions bearing upon the same subject should be taken together and the intention of the legislature determined from a comprehensive survey of the whole, rather than by passing upon isolated sections. The position of defendants in error is, in effect, that the word “may” in section 55 means “must,”' ■ • that the section should read that an action other than one of those mentioned in the first three sections of this title, against a corporation created by the laws of this state, other than an insurance company, must be brought in the county in which it is situated, or has its principal office or place of business, and they take the position that, in an action other than those provided for in sections 51, 52 and 53 of the code, no jurisdiction is obtained over a [623]*623domestic corporation, not an insurance company, in a county in which it neither is situated nor has its principal office or place of business, by issuance of summons to another county where it has its principal office or place of business, and service there.

This action is for a joint tort, in which one of the defendants was properly served in Gage bounty. The action, then, was rightly brought as to him in that county, and if the other defendants had been individuals there is no question hut that they might have been summoned in any other county in which they might have been found, and jurisdiction thereby obtained over their persons. Does the fact that they are domestic corporations alter the case? In Adair County Bank v. Forrey, 74 Neb. 811, we construed section 59 of the code, which is in terms equally as exclusive as to actions against nonresidents of this state as section 55 is with reference to corporations. It provides that an action other than one of those mentioned in the first three sections of this title, against a nonresident of this state, may be brought in any county in which there may be property or debts owing to said defendant, or where said defendant may be found, and it was strenuously urged, upon the same grounds as urged by the defendants in error in this case, that this section was exclusive, that it related to venue, and that an action could not be brought in one county and a summons sent to another for service upon a nonresident, so as to confer jurisdiction upon the court of the first county. In that case it is said:

“Under section 59, title IV, relating to venue, the proper venue of the action was in Douglas county.

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Cite This Page — Counsel Stack

Bluebook (online)
110 N.W. 643, 77 Neb. 619, 1906 Neb. LEXIS 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cobbey-v-state-journal-co-neb-1906.