Great West Min. Co. v. Woodmas of Alston Min. Co.

12 Colo. 46

• Court: Supreme Court of Colorado
• Decided: December 15, 1888
• Status: Published

Opinions

Mr. Justice Gerry

delivered the opinion of the court.

The original complaint is not set out in the record, nor is reference made to the same in the abstract or argument of counsel. The amended complaint is a suit against the Woodmas of Alston Mining Company and Alfred H. and Eandall W. Wilson. It was begun in the district court of Park county, but, by consent of parties, heard before the district court of said district in El Paso county. It is shown by the pleadings and proofs that the plaintiff is a domestic corporation, organized under the laws of this state, and that in January, 1883, it was the owner of certain mining claims situate in the county of Park; that, while it was such owner, one Perkins instituted- a suit against it by attachment, and about the same time a second suit was instituted against it by one Moynahan, both for the recovery of claims due from the said plaintiff to Perkins and Moynahan. Perkins was the assignee for a number of persons who were the creditors of the appellant, they assigning their claims to him for convenience and to enable him to bring one suit for the recovery of the aggregate of all the claims. One 0. S. Purmort, whom it is claimed-by appellees was the general agent of the company, was one of the persons who assigned his claim to the said Perkins. The other suit was by Moynahan on his own account. Both suits were begun by attachments, and jurisdiction, so far as the property of the company was concerned, was acquired by the issue and levy of the proper writs of attachment. The writs were served upon the said Purmort, who was at that time acting as foreman on the mines owned by the appellant. The general agent of the company at that time was one A. W. Kellogg, and Purmort received his appointment as foreman from Kellogg. When the sheriff served these writs on the said Purmort he then stated that he was not the agent of the company, but simply its foreman, and in each case the shexdff made return that he had executed the writs by serving the same upon Pux’mort, the foreman of the deferxdaixt company. After-wards, upon leave of court obtained for this purpose, the said shexiff amexxded his return, showing that he had served the process upon Purmort as the agexit of the defendant coxxipaxxy.

The axnended return on the writ of attachment in the Perkins suit showed that the return was upon said Purmort as “ the resident agent of the company,” and ixx the other writs and summons the amended return showed that the service was had upon the same person as' “ the general agent of the company.” In the suit of Perkins there was no appearance of the defendant, and judgment was entered by default. In the Moynahan suit, one Gwynn assumed to appear as attorney for the defendant company, and entered the appeai’ance of said companjr. A sort of trial was had, and judgment rendered in favor of Moynahan for the amount sued for in the complaint. Subsequently, special executions were issued, and the property was levied upon and sold for a sum of' money sufficient to pay both judgments and costs. At such sale, Gwynn, representing Perkins and Moynahan, and acting for himself, became the purchaser, receiving certificates of purchase. Nine months afterwards, the appellant having failed to redeem, sheriff’s deeds were issued to Gwynn and Moynahan. The property was sold by the sheriff some time in 1883, and the nine months allowed for redemption expired early in 1881. After receiving the sheriff’s deeds, Gwynn and Moynahan entered into possession of the property as owners, and continued in possession until the month of December, 1881, at which time they sold and conveyed the property to appellees Alfred H. and Randall W. Wilson. During the year 1885 the Woodmas of Alston Company was formed by the appellees, and a conveyance was made by the Wilsons to the said company. The mining property described in the complaint, and the subject-matter of this suit, has been worked by the appellees, and a large amount of ore extracted therefrom, and they have derived in profits an amount largely in excess of the amount of the judgments in question.

It is not necessary to analyze the pleadings in this case, or review, to any considerable extent, the evidence. It is clearly apparent that the only service of summons had was upon the said Purmort; that he was not the general agent,— he was simply the foreman, and acting in behalf of the general agent, Kellogg; that the plaintiff in the attachment suits, and the sheriff who made the service, knew that he was simply foreman, and the sheriff in the first instance so returned; that the said Purmort concealed or neglected to inform the company of the fact of such service, and that the said Gwynn, when he entered the appearance of the defendant company in the Moynahan suit, had no authority whatever for this purpose; and that he neglected or refused to inform the company of the fact of such suit, and that the company had no actual notice that any suit had been begun, that there had been any sales made under execution, or that there had ever been a conveyance of the property by the sheriff.

There was an attempt to obtain jurisdiction by service of process upon an agent of the corporation. In cases of domestic corporations the service must be upon a general agent. Code Civil Proc. 1883, § 40. There is a wide distinction between a general and a special or particular agent,— a distinction not unfounded or useless, and one which solves many cases. A special agency exists where there is a delegation of authority to do a single act, and a general agency exists where there is a delegation to do all acts connected with a' particular trade, business or employment. Story, Ag. § 17. Numerous other authorities recognize this same distinction so clearly laid down by Mr. Story. Beals v. Allen, 18 Johns. 363; Martin v. Farnsworth, 49 N. Y. 555; Merserau v. Insurance Co. 66 N. Y. 274; Railroad Co. v. Reisner, 18 Kan. 458; Cruzan v. Smith, 41 Ind. 288. While the powers of a general agent may be liberally construed according to the necessities of the occasion and the scope of his business and employment, those of a special agent are limited by the terms in which they are conferred, and he takes nothing by implication. O. S. Purmort, the person upon whom service of process was had in this case, could in no sense of the term be called a general agent. As shown by the evidence, one A. W. Kellogg was the general agent. Purmort was employed by him as foreman of the miue. His duties were to oversee the laborers on the mine, keep their time, see that work was done in mine fashion, perform the duties of shift boss, and in the absence of the general agent, Kellogg, he sold ore and bought supplies for the men, and paid their wages, reporting his acts and doings to Kellogg. He made no reports, and had no communications with the company direct. He kept no books, and had no office, nor was he held out by the company as an agent, nor did he represent himself as such. On the contrary, when the sheriff served the writ and summons upon him, he notified the sheriff that he was not an agent of the company, but simply foreman, and the sheriff at that time so understood, and made return of process accordingly. His duties and powers were limited, and not connected in any manner with the general management and supervision of the affairs of the company.

To bind a corporation the service of process must be upon the identical agent provided by the statute. Chambers v. Manufactory, 16 Kan. 270; Kennedy v. Society, 38 Cal. 151; Watertown v. Robinson, 59 Wis. 513; Aiken v. Mining Co. 6 Cal. 187; O'Brien v. Shaw, 10 Cal. 343; Reddington v. Mining Co. 19 Hun, 405; Cherry v. Railroad Co. 59 Ga. 446; Railroad Co. v. Miller, 81 Ill. 45.

In Railway Co. v. Hunt, 39 Mich. 469, the court, in speaking of the return of service upon an agent, said: “But what sort of an agent? Was he agent to buy wood, or to employ a switchman, or to keep cattle off the track, or what was his agency? Every servant of the road is in a sense an agent. There must be something more definite than the mere designation of a man as ‘agent’ before a court can say that his relation to the corporation was such as to make him its representative for the purpose of receiving services of process for it. The terms ‘general or special agent’ are very, indefinite, but employed as they are here, in association with terms designating the principal officers of the corporation, they evidently intend agents who either generally or in respect to some particular department of the corporate business have a controlling authority, either general or special. They do not mean every man who is intrusted with a commission or an employment.”

In Reddington v. Mining Co. the court said: “It is quite clear that the legislature attached importance to the term ‘managing agent,’ and employed it to distinguish a person who should be invested with general power, involving the exercise of judgment and discretion, from an ordinary agent or employee who acted in an inferior capacity, and under the direction and control of superior authority, both in regard to the extent of the work and the manner of executing the same. The distinction thus attempted to be drawn we deem reasonable, and in harmony with the obvious purpose of the statute in regard to the service of process upon a foreign corporation.”

In Transportation Co. v. Whittaker, 16 Wis. 233, the question presented was whether there had been a sufficient service. The summons had been served upon the captain of a steamboat belonging to the company while employed in transacting its business on the Mississippi river, within the boundaries of the state, and the court held that he was not a managing agent, within the meaning of the statute. Said the court: “The statute relates to an agent having a general supervision over the affairs of the corporation.”

The service of process in this case was not made upon a general agent of the defendant company, and such service could not bind the company. This conclusion renders necessary the investigation of the question whether the appearance of the appellant company entered by the attorney Gwynn in the Moynahan suit would bind it. He was not employed for this purpose by the company direct, or through its authorized agents, nor did he inform the company of his acts in the premises. His appearance was wholly unauthorized, and, in a proceeding directly attacking the judgment, this can be shown. The record shows that the defendant company appeared by its attorney, and this is conclusive proof that the attorney so appeared, but only prima facie evidence of the authority of the attorney so to act. It would not only be harsh, but absurd, to hold that a person could be deprived of his property without notice, and upon the mere entry of an appearance by an1 attorney acting wholly without authority delegated for this purpose. Attorneys are officers of the court, and their authority to appear in any particular case will not be questioned by the court. Their appearance is prima facie evidence of authority to act; but when such authority is denied or properly put in issue, it is competent to rebut by proofs any presumptions which may arise from such acts. If the attorney was without authority, then his acts could bind no one. Shelton v. Tiffin, 6 How. 163; Shumway v. Stillman, 6 Wend. 447; Welch v. Sykes, 3 Grilman, 197; Hall v. Williams, 6 Pick. 232; Sheriff v. Smith, 47 How. Pr. 470; Thompson v. Emmert, 15 Ill. 415; Chapman v. Austin, 44 Tex. 133; Napton v. Leaton, 71 Mo. 358.

The proceedings in this case are a direct attack upon the judgment, and it is- useless to discuss the question so ably presented by counsel, whether a judgment can be attacked collaterally for want of due service. It was competent to showr that the service of the writ and summons was not made upon a general agent of the defendant, and that the entry of appearance by the attorney was unauthorized, and that no notice was given to the parties whose right was sought to be affected by such entry. It follows as a logical result of the propositions before discussed that a judgment rendered without service, or upon the unauthorized appearance of an attorney, is (whenever it is made to appear by proper proceedings instituted for this purpose) void, and that all sales, or other proceedings had thereunder, are as to all persons, irrespective of notice or bona fides, absolute nullities. Shelton v. Tiffin, 6 How. 163. A different rule might prevail if a judgment is only attacked on the ground of fraud, and rights had been acquired on execution sales without notice of such fraud. But absence of legal service or authorized appearance is jurisdictional. Without jurisdiction, no judgment whatever will be entered, nor rights acquired thereunder.

The mere levy of an attachment did not give the court jurisdiction to determine the question of indebtedness and condemn the attached property to pay the same. The remedy by attachment is purely statutory. It has no existence without the statute. It has an individuality entirely foreign to the common law, and, being in derogation of common right, must be. strictly construed. An attachment of real estate and notice thereof is made by filing a copy of the writ, together with a description of the property, with'the recorder of the county; and by serving a copy of the writ on the defendant. Civil Code 1883, § 101. When service is other than personal, or personal service without the state, the statute provides when this shall be complete. Id. §§ 44, 45. The statute (Id. § 49) further provides that, from the time of the service of summons in a civil action, the court shall be deemed to have acquired jurisdiction, and to have control of all subsequent proceedings. A voluntary appearance of the defendant shall be equivalent to personal service upon him. Where a defendant resides in this state, and there is no question but that he can be personally served, the service is complete when a copy of the writ is served upon him, and the property levied upon. Then, and not until then, does the court acquire jurisdiction to finally hear and determine the same. This is a construction that this provision of the code has ever received. Kendall v. Washburn, 14 How. Pr. 380; Moore v. Thayer, 6 How. Pr. 47; In re Griswold, 13 Barb. 412; Kelly v. Countryman, 15 Hun, 97.

This provision of the statute is simply a declaration of that principle always maintained by the courts, that a person cannot be prejudiced, or his rights of person or property affected without notice, either actual or constructive. So jealous have the people been of the maintenance of this principle that it has been engrafted into both the federal and the state constitutions, and that constitutional requirement of due process of law extends to all proceedings, judicial and administrative. Stuart v. Palmer, 74 N. Y. 183; Clark v. Mitchell, 69 Mo. 627. The courts have uniformly held that this requirement demands that there shall be notice and hearing before condemnation. Any proceeding which violates these principles is not “ due process of law,” and is not according “to the law of the land.” Where the property of a citizen is taken and condemned without notice to him, it is entirely immaterial whether it be a special or general judgment; the fundamental wrong in such case being that his property is taken and conveyed to some other person without his knowledge.

The abstract in this case was very imperfect, and the record exceedingly voluminous, and the court regrets that no argument was filed by counsel for the appellees; for in cases of this magnitude the court is entitled to all the light which the experience and research of counsel can furnish.

Judgment reversed and cause remanded.