Farrell v. Oregon Gold Co.

49 P. 876, 31 Or. 463, 1897 Ore. LEXIS 63

Opinions

Mr. Justice Bean,

after stating the facts, delivered the opinion of the court.

The motion to open the default and vacate the judgment in this case is based upon the ground that the judgment is void for the reason (1) that the sher ifE’s return is insufficient to warrant its entry, and (2) that the corporation was in fact not doing business in the state at the time the action was commenced, and that Walters, its president, upon whom service was made, was here on other business, and not as its representative.

1. In support of the first point it is contended that it is essential, in order to support the jurisdiction of the courts of this state to render a personal judgment by default against a foreign corporation, that it shall appear from the return of the service that the corporation was engaged in business in the state at the time the service was made, and that the agent upon whom it was made was authorized to represent the corporation here. But we cannot concur in this view of the law. It is quite true the statute provides that no foreign corporation shall be subject to the jurisdiction of the courts of the state in personam unless it appear in the action or have an agency established here for the transaction of some portion of its business: Hill’s Ann. Laws, § 516. But this is only declaratory of the general rule that, in the absence of a voluntary appearance, the courts of one state have no jurisdiction over a corporation created in another, unless it is transacting some portion of its corporate business within the state where sued. And as a corporation can act only through its agents, it necessarily follows that if it is doing business in the state it must have an agency established here, within the meaning of the statute. In no other way can it do business, and hence the statute simply means that, in the absence of a voluntary appearance, no foreign corpora tion shall be subject to the jurisdiction of the courts of this state unless it is engaged in the transaction of some portion of its corporate business at the time the action is commenced; and this is the rule prevailing elsewhere: Aldrich v. Anchor Coal Company, 24 Or. 32 (41 Am. St. Rep. 831, 32 Pac. 756); 6 Thompson on Corporations, § 7995; 2 Morawetz on Corporations, § 980; St. Clair v. Cox, 106 U. S. 350 (1 Sup. Ct. 354); Goldey v. Morning News, 156 U. S. 518 (15 Sup. Ct. 559); United States v. American Bell Telephone Company, 29 Fed. 17; Carpenter v. Air-Brake Company, 32 Fed. 434.

So long as a corporation confines its operations to the state within which it was created, it cannot be subjected to the jurisdiction of a court of another state, where it has no office or transacts no business, by the service of process on some officer or agent while temporarily present in the latter state, because he cannot take the corporation with him beyond the jurisdiction of the state of its creation. But when it voluntarily goes into another state, and by the express permission or acquiesence of such state engages in the transaction of its corporate business, it is liable to be brought into the courts thereof by service of process upon such officer or agent as the local laws may designate, and the judgment founded thereon will be held good everywhere unless the mode of acquiring jurisdiction violates the principles of natural justice. In short, when a corporation migrates into another state, and engages in business there, it becomes, in effect, for jurisdictional purposes, a domestic corporation, and liable to suit upon a cause of action arising in the state of its adoption by service of process in the manner provided for service on domestic corporations, unless the statute otherwise provides: 6 Thompson on Corporations, § 8019; Insurance Company v. Carrugi, 41 Ga. 660. A corporation of one state cannot do business in another without the consent of the latter, express or implied, and hence a state may impose, as a condition upon which a foreign corporation shall do business within its borders, that it accept as sufficient the service of process upon such officers or agents as may be prescribed. This condition may be implied as well as expressed. When, therefore, a state provides by general law that process may be served upon a private corporation by serving the same upon certain officers or agents thereof, and a foreign corporation subsequently comes into the state to do business, it will be deemed to have consented to subject itself to the jurisdiction of the local courts by the service of process upon the officers or agents designated in the local statute. Now, by the laws and policy of this state, foreign corporations are as free to engage in business therein as corporations of its own creation; but no special provision having been made for the service of process upon them (except certain corporations not necessary to be named), it may be made in like manner as upon domestic corporations, and a return thereof, good in an action against the latter, will, under similar circumstances, be good against the former.

3. As already suggested, the contention for the defendant is that the return is insufficient, because it does not show that the corporation was doing busi ness in the state at the time the service was made, or that Walters was an agent authorized to represent it here. The first objection is, we think, sufficiently answered by the opinion of Mr. Justice Field in the case of St. Clair v. Cox, 106 U. S. 350 (1 Sup. Ct. 354), in which it was said, in effect, that, in order to support the jurisdiction of the courts of a state to render a personal judgment against a foreign corporation, it must appear somewhere in the record, either in the application for the writ, or accompanying the service, or in the pleadings or findings of the court, that the corporation was engaged in business in the state; but, when the transaction of business by the corporations so appeared, “a certificate of service by the proper officer on a person who is its agent there would, in our opinion, be sufficient prima facie evidence that the agent represented the company in the business. It would then be open, when the record is offered as evidence in another state, to show that the agent stood in no representative character to the community, that his duties were limited to those of a subordinate employee or to a particular transaction, or that his agency had ceased when the matter in suit arose.” It does appear from the complaint in this case that the defendant corporation was engaged in business in the state at the time the action was commenced, and this was sufficient to support the jurisdiction of the court, within the rule laid down by Mr. Justice Field in the case referred to. And in the nature of things this must be so. The sheriff, as a ministerial officer, is neither required nor authorized to determine the question of jurisdiction and certify to his conclusion in his return. He is charged with the duty of serving the process, and is required to certify to the fact of such service, and upon whom it was made, and then it remains for the court to determine, from the entire record, -whether, under the service as made by him, it has jurisdiction of the person of the defendant. So that we think the objection to the validity of the judgment in question cannot be sustained on the ground that the sheriff did not certify that the defendant was doing business in the state at the time the service was made.

4. Nor do we think the return fatally defective because it does not show that at the time of service AValters was an agent authorized to represent the defendant in this state. It does show that he was the president of the defendant, and that the summons was served upon him in Union County; and, as it elsewhere appears in the record that the corporation was doing business in that county, this is a sufficient compliance with the provisions of section 55, Hill’s Ann. Laws, prescribing the mode of service of process upon private corporations, and is prima facie sufficient to give the court jurisdiction. The statute referred to provides that, in an aetion against a private corporation, service shall be made upon the president or other head of the corporation, secretary, cashier, or managing agent, or, in case none of such officers shall reside or have an office in the county where the cause of action arose, then upon any clerk or agent of the corporation who may reside or be found in the county. The object of service of process is to bring notice home to the defendant, and hence the statute contemplates that, in an action against a private corporation, service may be made upon the president or other head of the corporation, if it can be done within the county where the action is pending, and, if not, upon some subordinate agent. Such would be the rule in an action against a domestic corporation, and, as we have seen, the same rule applies to an action against a foreign corporation, when engaged in the transaction of business m this state. If a foreign corporation is not doing business here, service upon its president or other officer will, of course, not give the courts of the state jurisdiction of the corporation, because it does not accompany such officers into the state; but where the corporation itself has come into the state, and engaged in the transaction of its ordinary corporate business, service upon its president in the county where the cause of action arose is at least prima facie sufficient.

5. The other objection to the judgment is that the court was without jurisdiction because the defendant corporation was not doing business in this state at the time the action was commenced, nor was Walters, upon whom service was had, its agent or representative here. If the facts are as stated in this objection, the judgment is unquestionably void; for, as we have seen, the courts of this state cannot acquire jurisdiction over foreign corporations unless they are engaged in business here. But the plaintiff objects to the consideration of this question because the issue presented was one of fact, to be determined by the trial court from evidence dehors the record, and that such evidence is not a part of the record on this appeal, and cannot, therefore, be considered by the court. Accompanying the transcript are a large number of affidavits which appear to have been filed in the court below, and which, it is claimed, contain the evidence upon which the issue in question was tried and determined; but they are not brought up by bill of exceptions, or in any way identified or made a part of the record by the trial court, and the contention for the plaintiff is that, for this reason, they cannot be considered on this appeal. The statute provides that, upon an apj>eal from a judgment, “the same shall be reviewed only as to questions of law appearing upon the transcript,” etc. (Hill’s Ann. Laws, § 543), and that the transcript is “ a copy certified by the clerk of the roll or final record, or the pleadings, orders, papers, and journal entries that constitute such roll or record,” etc.: (Hill’s Ann. Laws, § 541). From these two sections of the statute it is clear that no questions can be considered on an appeal from a judgment except such as appear from the judgment roll; and, unless the affidavits referred to are a part of such roll, there is nothing before this court for consideration upon this point. Now, the statute defines a judgment roll, and, so far. as applicable to the case in hand, it consists of the summons and proof of service, the pleadings, bill of exceptions, orders relating to the change of parties, together with a copy of the entry of judgment, and all other journal entries and orders in any way involving the merits and necessarily affecting the judgment: Hill’s Ann. Laws, § 272, subd. 2. It is clear, therefore, that affidavits or other matters dehors the judgment roll as thus defined are no part of the record, and can not be considered on appeal from the judgment, unless made so by a bill of exceptions; and so this court has uniformly held.

6. “No papers should be included in the transcript in any case,” says Thayer, C. J., “except such as constitute the judgment roll or final record, or which have been made of record by being incorporated into a bill of exceptions. They cannot be considered for any purpose, and serve only to embarrass the court and counsel. We held in Osborn v. Graves, 11 Or. 526 (6 Pac. 227), in effect, that no paper not a part of the transcript, although certified as such, could be considered on the appeal. Because an exception need not be taken or allowed to any decision upon a matter of law, when the same is entered in the journal, or made wholly upon the matters in writing and on file in the court, does not preclude the necessity of making a statement of the exception. In such case an exception to the decision is deemed to have been taken. The law regards it as having been objected to, which constitutes an exception. But that is a mere challenge to the correctness of the decision. Whether it is erroneous or not depends upon facts. It is often necessary to show the circumstances under which it was made in order to prove it to be erroneous”: Mitchell v. Powers, 16 Or. 491 (19 Pac. 647). And to the same effect are Scott v. Cook, 1 Or. 25; Oregonian Railway Company v. Wright, 10 Or. 162; State v. Drake, 11 Or. 396 (4 Pac. 1204); State v. Chee Gong, 17 Or. 635 (21 Pac. 882); Van Bibber v. Fields, 25 Or. 530 (36 Pac. 526). Indeed, a careful examination of authorities has failed to disclose any case in which the court, on appeal from a judgment, has, under a statute similar to ours, ever reviewed the determination of the trial court, based on a mere question of evidence, unless the evidence upon which it acted has in some way been made a part of the record by such court, and the decisions are numerous where they have refused to do so. See 2 Enc. PL & Prac. 270, and note, for a. collation of authorities; Barber v. Briscoe, 8 Mont. 214 (19 Pac. 589); Fish v. Benson, 71 Cal. 428 (12 Pac. 454); Nash v. Harris, 57 Cal. 242; Aultman v. Howe, 10 Neb. 8 (4 N. W. 357); City of Plattsmouth v. Boeck, 32 Neb. 297 (49 N. W. 167); Fitzgerald v. Benadom, 35 Neb. 317 (53 N. W. 72); Development Company v. Nye, 5 Wash. 301 (31 Pac. 752).

7. It is contended by the defendant that, the proceedings in this case having taken place after the rendition of judgment, and the decision having been made wholly upon matters in writing, and on file in the court, the statute in reference to the judgment roll does not apply, and that no exception or bill of exceptions is necessary to entitle the affidavits to be considered on appeal. But this argument assumes, in the first place, that the decision was in fact made wholly upon matters in writing and on file in the court, without anything in the record upon which to base the assumption, and, second, that a bill of exceptions is only necessary when the rulings of the court are not deemed excepted to under the law. Neither of these positions is, in our opinion, sound. There is no law which we now call to mind requiring a motion to vacate a judgment based upon a question of fact dehors the record to be determined by the trial court on affidavits alone, and it appears from the authorities cited that, when the ruling of the court is based upon a finding of fact from evidence, it makes no difference whether the exception is taken in person, or the ruling is deemed excepted to under the statute. The facts upon which it is made are no part of the record unless reduced to writing, and settled and signed as a bill of exceptions. The case of Ankeny v. Fairview Milling Company, 10 Or. 390, is to be distinguished from the case in hand, in that it was a special statutory proceeding for an order to abate a nuisance, and wholly independent of the original action. It follows that we cannot review the finding of the circuit court on the question of fact presented by the motion to vacate because the evidence upon which it was based is not properly here. The judgment of the court below must be affirmed, and it is so ordered.

Affirmed.