Summary
In Ford Motor Co. v. Hall Auto Co., 226 Ala. 385, 147 So. 603, 605, is the following expression, which we think will in substance be found in all of our decisions on the subject, from the earliest to the present time, to wit: "Whether the corporation was doing business within the state, and whether the person served was an authorized agent, are questions vital to the jurisdiction of the court."
Summary of this case from Parker v. Central of Georgia Ry. Co.Opinion
6 Div. 227, 228.
March 30, 1933.
Appeal from Circuit Court, Jefferson County; Chas. W. Greer, Judge.
H. H. Grooms and Coleman, Spain, Stewart Davies, all of Birmingham, for appellant.
A foreign corporation is subject to suit only if it is doing business within the jurisdiction in such manner and to such extent that its actual presence there is established. Cowikee Mills v. Ga.-Ala. Power Co., 216 Ala. 221, 113 So. 4; Philadelphia R. R. Co. v. McKibbin, 37 S.Ct. 280, 243 U.S. 264, 61 L.Ed. 710; Bank of America v. Whitney C. N. Bank, 261 U.S. 171, 43 S.Ct. 311, 67 L.Ed. 594; People's Tob. Co. v. Amer. Tob. Co., 246 U.S. 79, 38 S.Ct. 233, 62 L.Ed. 587, Ann. Cas. 1918C, 537; Louisville N. R. Co. v. Chatters, 279 U.S. 320, 49 S.Ct. 329, 73 L.Ed. 711; Riverside D. R. C. Mills v. Menefee, 237 U.S. 189, 35 S.Ct. 579, 59 L.Ed. 910; Rosenberg Bros. v. Curtis Brown Co., 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372; Cannon Mfg. Co. v. Cudahy Packing Co., 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634; Carnegie O. A. Co. v. Thos. A. Edison, Inc. (D.C.) 28 F.(2d) 626; Hutchinson v. Chase Gilbert (C. C. A.) 45 F.(2d) 139; 14A C. J. 1372. To constitute doing business in the state, there must be a doing of some of the works, or an exercise of some of the functions for which the corporation was created and organized to contract. The acts done must be in the exercise of corporate functions as distinguished from those done merely within corporate powers. Beard v. Union A. P. Co., 71 Ala. 60; Sullivan v. Sullivan T. Co., 103 Ala. 371, 15 So. 941, 25 L.R.A. 543; International C. S. O. Co. v. Wheelock, 124 Ala. 367, 27 So. 517; Holman v. Durham Buggy Co., 200 Ala. 556, 76 So. 914; Friedlander Bros. v. Deal, 218 Ala. 245, 118 So. 508. Jurisdiction over a corporation of one state cannot be acquired in another state in which it has no place of business and is not found merely by serving process upon an officer temporarily therein. James-Dickinson F. M. Co. v. Harry, 273 U.S. 119, 47 S.Ct. 308, 71 L.Ed. 569; Burch v. Ingham L. Co., 212 Ala. 204, 102 So. 19; Haas-Phillips v. Lee Edwards, 205 Ala. 137, 87 So. 200; 14A C. J. 1374; Sullivan v. Sullivan T. Co., supra. Presence of an agent is not to be confused with the presence of the corporation itself. Golden v. Connersville Wheel Co. (D.C.) 252 F. 904. Validity of service upon an agent of a foreign corporation within the state depends upon whether the corporation was doing business at the very time suit was brought, not at some prior or subsequent time. Jefferson Island Salt Co. v. Longyear Co., 210 Ala. 352, 98 So. 119. On the question of whether a foreign corporation is doing business within a state, the federal authorities are controlling. State v. Agee, 83 Ala. 110, 3 So. 856; Stratford v. Montgomery, 110 Ala. 619, 20 So. 127; York Mfg. Co. v. Colley, 247 U.S. 21, 38 S.Ct. 430, 62 L.Ed. 963, 11 A.L.R. 611; Chipman v. Jeffrey, 251 U.S. 373, 40 S.Ct. 172, 64 L.Ed. 314; Hall v. Wilder Mfg. Co., 316 Mo. 812, 293 S.W. 760, 52 A.L.R. 723; Ivy R. L. Co. v. Nat. F. I. Co., 192 N.C. 115, 133 S.E. 424. Constitutional and statutory requirements as to foreign corporations doing business in Alabama are not applicable to such corporations while engaged in interstate commerce. Hurst v. Fitz Water Wheel Co., 197 Ala. 10, 72 So. 314; Ware v. Hamilton Brown S. Co., 92 Ala. 145, 9 So. 136; Vandiver v. American Can Co., 190 Ala. 352, 67 So. 299; Leverett v. Garland Co., 206 Ala. 556, 90 So. 343. The fact that a cause of action grew out of a transaction which occurred in the state does not give jurisdiction unless the corporation is otherwise doing business in the state. Rosenberg Bros. v. Curtis Brown Co., 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372; Davega v. Lincoln F. M. Co. (C.C.A.) 29 F.(2d) 164; Dozier v. Alabama, 218 U.S. 124, 30 S.Ct. 649, 54 L.Ed. 965, 28 L.R.A. (N.S.) 264; Rearick v. Pennsylvania, 203 U.S. 507, 27 S.Ct. 159, 51 L.Ed. 295. The filing of interrogatories and making of motion to compel answers does not waive a plea in abatement, especially where the movant appears specially. Oates v. Clendenard, 87 Ala. 734, 6 So. 359; Interstate Chem. Co. v. Home Guano Co., 199 Ala. 583, 75 So. 166. Rulings made during the progress of a cause against the party who ultimately prevails cannot be reviewed on the appeal of the losing party, especially in the absence of cross-assignments. Holdsombeck v. Fancher, 112 Ala. 469, 20 So. 519; Barnett v. Freeman, 197 Ala. 142, 72 So. 395; Benson H. Co. v. Roberts, 202 Ala. 268, 80 So. 106; Roach v. Olive, 208 Ala. 612, 95 So. 23; Columbia M. Co. v. Williams, 209 Ala. 640, 96 So. 900; Colvin v. Payne, 218 Ala. 341, 118 So. 578.
Kingman C. Shelburne and Bradley, Baldwin, All White, all of Birmingham, for appellees.
When a defendant becomes an actor in an action and institutes a proceeding which has for its basis the existence of an action to which he is a party, he thereby submits himself to the jurisdiction of the court, and no disclaimer which he may make on the record, that he does not intend so to do, will be effectual to defeat the consequences of his act. 2 R. C. L. 327; 2 Eng. Pl. Pr. 625; Montana ex rel. Haire v. Rice, 204 U.S. 291, 27 S.Ct. 281, 51 L.Ed. 490; Alderson v. White, 32 Wis. 308; Perkins v. Hayward, 132 Ind. 95, 31 N.E. 670; Driscoll v. Tillman, 165 Wis. 245, 161 N.W. 765. It is difficult to lay down any rules of universal application to determine when a corporation is doing business in a state of such a kind as will make it suable therein. Each case must depend upon its own facts. The appellant was doing business in Alabama. International Harvester Co. v. Kentucky, 234 U.S. 579, 34 S.Ct. 944, 58 L.Ed. 1479; La Porte H. M. Co. v. Ford Motor Co. (D.C.) 24 F.(2d) 861; York Mfg. Co. v. Colley, 247 U.S. 21, 38 S.Ct. 430, 62 L.Ed. 963, 11 A.L.R. 611; Carroll Elec. Co. v. Freed-Eisemann Radio Corporation, 60 App. D.C. 228, 50 F.(2d) 993; Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 115 N.E. 915; Jeffrey-Nichols M. Co. v. Hupp M. C. Corp. (C.C.A.) 46 F.(2d) 623.
It was agreed that one record on appeal would cover the entire proceedings in both cases, and that it would not be necessary to certify separate records. The cases therefore will be so considered in this court upon the "separate and several assignments of error, separately and severally," etc.
The separate and several respective grounds of demurrer directed to count 6 of the complaint as amended by appellees Hall Auto Company and Reid Motor Company were overruled. This action is assigned as respective error by the Ford Motor Company.
That count (count 6) claimed damages under section 9899 of the Code for the sale of stock in the Redmont Motor Company to the appellees in violation of the statute.
In the Hall and Reid cases, the returns show that service was executed on Ford Motor Company, a corporation, "by leaving a copy of within with J. H. Wood, Jr., as agent of said company," on October 28, 1931. And on November 20, 1931, the appellant appeared specially and "for no other purpose," respectively filed pleas in abatement to the jurisdiction. Rhode Island Ins. Co. v. Holley (Ala. Sup.) 146 So. 817. The cases were set for trial on April 13, 1932, and on that day appellees made motions to strike the pleas in abatement, and the same were overruled. Whereupon appellees filed demurrers to said pleas, which were sustained, and appellant amended its pleas in abatement, and the refiled demurrers were overruled.
Ante, p. 320.
The appellees filed special replications to the amended pleas in abatement, appellant demurred thereto, which demurrers were sustained, and the parties joined issue on the special pleas in abatement, and, after hearing the evidence on said pleas, the court rendered judgments thereon in favor of the plaintiffs and against the defendant. This action of the court is assigned as error.
After the court had decided the pleas in abatement for appellees and against Ford Motor Company, count 6 was amended by a count designated as 1 (see pages 12 and 33 of the record), demurrers being overruled to count 6 as thus amended; and the pleadings on the merits were in short by consent. The court entered judgments against appellant in each case; hence the motions for new trials, the overrulings thereof, and the appeals.
The ruling on a plea in abatement is of primary importance, presenting as it does the question of jurisdiction which must be disposed of before other procedure can be required of such defendant, duly limiting his appearance. Rhode Island Ins. Co. v. Holley, supra, and authorities; Ex parte Tucker, 208 Ala. 428, 94 So. 276; Steele v. Booker, 205 Ala. 210, 87 So. 203; Walker v. Adler, 216 Ala. 76, 112 So. 458; Code, § 9517. In the instant case the appearance was special, and no question of a waiver may be maintained. It has been established, that a foreign corporation is subject to suit within the state only if it is doing business within the jurisdiction in such manner and to such extent as that its actual corporate presence there, where process is served, is established. St. Mary's Oil Engine Co. v. Jackson Ice Fuel Co., 224 Ala. 152, 155, 138 So. 834; Cowikee Mills v. Georgia-Alabama Power Co., 216 Ala. 221, 113 So. 4. That is to say: "To sustain an action against a nonresident in the state court, (1) the court must have jurisdiction of the subject-matter of the suit, and (2) the person, acquired by service of process authorized by the statutes of the state, and consistent with due process under the Fourteenth Amendment of the Federal Constitution. And as a general rule, a nonresident, whether an individual or a corporation, is suable in the state courts upon a cause of action arising within the jurisdiction of the state, if service of process efficacious to give jurisdiction of the person can be perfected. Equitable Life Assurance Society v. Vogel's Ex'x, 76 Ala. 441, 52 Am. Rep. 344; Weymouth v. Washington, Georgetown Alexandria R. Co., 1 MacArthur (8 D.C.) 19; 14a C. J. 1383, § 4099." (Italics and numbers supplied.) St. Mary's Oil Engine Co. v. Jackson Ice Fuel Co., 224 Ala. 155, 138 So. 834, 836. And the test employed in Philadelphia Reading Railway Co. v. McKibbin, 243 U.S. 264, 37 S.Ct. 280, 61 L.Ed. 710, to the effect that "a foreign corporation is amenable to process to enforce a personal liability, in the absence of consent, only if it is doing business within the state in such manner and to such extent as to warrant the inference that it is present there. And even if it is doing business within the state, the process will be valid only if served upon some authorized agent. * * * Whether the corporation was doing business within the state, and whether the person served was an authorized agent, are questions vital to the jurisdiction of the court," was approved in Cowikee Mills v. Georgia-Alabama Power Co., 216 Ala. 223, 113 So. 4. Other federal authorities on this inquiry are Bank of America v. Whitney Central National Bank, 261 U.S. 171, 43 S.Ct. 311, 67 L.Ed. 594; People's Tobacco Company v. American Tobacco Company, 246 U.S. 79, 38 S.Ct. 233, 62 L.Ed. 587, Ann. Cas. 1918C, 537; Louisville Nashville Railroad Co. v. Chatters, 279 U.S. 320, 49 S.Ct. 329, 73 L.Ed. 711; Riverside Dan River Cotton Mills v. Menefee, 237 U.S. 189, 35 S.Ct. 579, 59 L.Ed. 910; Rosenberg Brothers Co. v. Curtis Brown Co., 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372; Cannon Manufacturing Co. v. Cudahy Packing Co., 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634; 14a C. J. p. 1372, § 4079.
It is recognized that the federal authorities are controlling on questions entering into the inquiry and ascertainment of the facts (1) of doing business, and (2) of authorized agency on which process must be served, or (3) those of due process, equal protection, and interstate commerce. State v. Agee, 83 Ala. 110, 3 So. 856; Stratford v. City Council of Montgomery, 110 Ala. 619, 20 So. 127; Beard v. Union American Publishing Co., 71 Ala. 60; Ware v. Hamilton Brown Shoe Co., 92 Ala. 145, 9 So. 136; Hurst v. Fitz Water Wheel Co., 197 Ala. 10, 72 So. 314; Vandiver v. American Can Co., 190 Ala. 352, 67 So. 299; Leverett v. Garland Co., 206 Ala. 556, 90 So. 343; Lee v. Intendant and Town Council of LaFayette, 153 Ala. 675, 45 So. 294; Crum v. Town of Prattville, 155 Ala. 154, 46 So. 750; 60 A.L.R. 997 note; 60 A.L.R. p. 1021 note; City of Mobile v. Phillips, 146 Ala. 158, 40 So. 826, 121 Am. St. Rep. 17; York Manufacturing Co. v. Colley, 247 U.S. 21, 38 S.Ct. 430, 63 L.Ed. 963, 11 A.L.R. 611; Chipman v. Thomas B. Jeffery Co., 251 U.S. 373, 40 S.Ct. 172, 64 L.Ed. 314.
In Dozier v. State of Alabama, 218 U.S. 124, 30 S.Ct. 649, 650, 54 L.Ed. 965, 967, 28 L.R.A. (N.S.) 264, reversing Dozier v. State, 154 Ala. 83, 46 So. 9, 129 Am. St. Rep. 51, the court said: "* * * It is true that the customer was not bound to take the frame unless he saw fit, and that the sale of it took place wholly within the state of Alabama, if a sale was made. But, as was hinted in Rearick v. Pennsylvania, 203 U.S. 507, 512, 51 L.Ed. 295, 297, 27 S.Ct. 159, what is commerce among the states is a question depending upon broader considerations than the existence of a technically binding contract, or the time and place where the title passed."
The subject of doing business in the state was defined by Judge Stone, saying the act must constitute "a doing of some of the works," or "an exercise of some of the functions, for which the corporation was created" to do. Beard v. Union American Publishing Co., 71 Ala. 60, 62; Friedlander Bros., Inc., v. Deal, 218 Ala. 245, 249, 118 So. 508; Sullivan v. Sullivan Timber Co., 103 Ala. 371, 15 So. 941, 25 L.R.A. 543; Holman v. Durham Buggy Co., 200 Ala. 556, 76 So. 914; 60 A.L.R. 996 note.
To constitute doing business, the acts done must be done in the "exercise of corporate functions," and be distinguishable from acts "done merely within corporate powers." This distinction has been preserved by our decisions. Friedlander Bros., Inc., v. Deal, supra; International Cotton Seed Oil Co. v. Wheelock, 124 Ala. 367, 27 So. 517; Holman v. Durham Buggy Co., supra; Liberty Life Assur. Soc. v. Woodard, 219 Ala. 24, 26, 121 So. 30; St. Mary's Oil Engine Co. v. Jackson Ice Fuel Co., 224 Ala. 152, 157, 138 So. 834; Alabama Western Railroad Co. v. Talley-Bates Const. Co., 162 Ala. 396, 50 So. 341; Muller Manufacturing Co. v. First Nat. Bank of Dothan, 176 Ala. 229, 57 So. 762; Farmers' Ginners' Cotton Oil Co. v. Baccus, 207 Ala. 75, 92 So. 4; State v. Anniston Rolling Mills, 125 Ala. 121, 27 So. 921.
The general authorities are collected in 14A C. J. p. 1374, on the question of the presence in the state of an agent and the presence in that state of the foreign corporation itself, in such sense as that it may be brought into court by service of process on such an agent or officer temporarily therein. The rule applied by this court finds statement in the last-cited authorities and in the federal decisions. James-Dickinson Farm Mortgage Co. v. Harry, 273 U.S. 119, 47 S.Ct. 308, 71 L.Ed. 569, 573; Rosenberg Brothers Co. v. Curtis Brown Co., 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372; Philadelphia Reading Railway Co. v. McKibbin, 243 U.S. 264, 37 S.Ct. 280, 61 L.Ed. 710; Bank of America v. Whitney Central National Bank, 261 U.S. 171, 43 S.Ct. 311, 67 L.Ed. 594; Lumiere v. Wilder, 261 U.S. 174, 43 S.Ct. 312, 67 L.Ed. 596. See, also, our cases Sullivan v. Sullivan Timber Co., 103 Ala. 371, 15 So. 941, 25 L.R.A. 543; Haas-Phillips Produce Co. v. Lee Edwards, 205 Ala. 137, 87 So. 200; Burch v. Ingham Lumber Co., 212 Ala. 204, 102 So. 19; St. Mary's Oil Engine Co. v. Jackson Ice Fuel Co., supra.
It will be observed that the validity of service upon an agent of a foreign corporation within the state depends upon whether the corporation was (1) doing business by an agent in the exercise of its corporate functions; (2) at the time suit was perfected by the service made; and (3) it is not to be tested by the time the process issued or was delivered to the sheriff, but at the time he served that process the corporation was doing business, an essential to service of process in the case. Jefferson Island Salt Co. v. E. J. Longyear Co., 210 Ala. 352 (3), 98 So. 119; Abraham Bros. v. Southern Ry. Co., 149 Ala. 547, 42 So. 837; Sullivan v. Sullivan Timber Co., supra; St. Mary's Oil Engine Co. v. Jackson Ice Fuel Co., 224 Ala. 152, 157, 138 So. 834; General Motors Acceptance Corporation v. Home Loan Finance Co., 218 Ala. 681, 120 So. 165; Friedlander Bros., Inc., v. Deal, 218 Ala. 245, 249, 118 So. 508; Cannon Manufacturing Co. v. Cudahy Packing Co., 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634, 641; People's Tobacco Co. v. American Tobacco Co., 246 U.S. 79, 38 S.Ct. 233, 62 L.Ed. 587, Ann. Cas. 1918C, 537; Bank of America v. Whitney Central National Bank, 261 U.S. 171, 43 S.Ct. 311, 67 L.Ed. 594. The authorities on subsidiary systems are collected in the note, 67 L.Ed. 596, of the United States Supreme Court Reports.
We do not pass on a waiver of the special pleas in abatement to the jurisdiction, due to the fact that appellant filed a motion to compel answers to interrogatories which had been propounded to appellees (replications No. 1). The appellant in its motion, limited the appearance as to its motion as follows: "Comes the defendant, Ford Motor Company, and appearing specially for the sole purpose of filing this its motion, and shows unto the court that the defendant filed interrogatories unto the plaintiff(s)." The ruling of the court was in favor of the appellant, and, in the absence of cross-appeal and assignment of errors, we say nothing further on this question. Holdsombeck v. Fancher, 112 Ala. 469, 20 So. 519; Colvin v. Payne, 218 Ala. 341, 118 So. 578; Columbia Motors Co., v. Williams, 209 Ala. 640, 96 So. 900; Roach v. Olive, 208 Ala. 612, 95 So. 23; Benson Hardware Co. v. Roberts, 202 Ala. 268, 80 So. 106; Barnett v. Freeman, 197 Ala. 142, 72 So. 395.
We have carefully considered the evidence and arguments pro and con, on the special pleas in abatement presenting the question of jurisdiction, and are of opinion that the pleas as amended should have been sustained by the court. The judgments are reversed, and the cases are each remanded on the appeal of the Ford Motor Company. The costs are taxed against the appellees.
Reversed and remanded.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.