1. The courts of the United States do not regard as valid or as
importing verity a judgment
in personam rendered by a
state court for the recovery of a debt or demand unless the
defendant either entered a voluntary appearance, or he or someone
authorized to receive process for him was personally cited to
appear.
Pennoyer v. Neff, 95 U. S.
714, cited and approved, and the doctrines announced in
that case declared to be applicable to personal judgments against
corporations.
2. Michigan permits foreign corporations to transact business
within her limits, and when a suit by attachment is brought against
one of them by a resident of the state, she authorizes the service
of a copy of the writ, with a copy of the inventory of the property
attached, on "any officer, member, clerk, or agent of such
corporation" within the state, and declares that a personal service
of a copy of the writ and of the inventory on one of these persons,
shall have the force and effect of personal service of a summons on
a defendant in suits commenced by summons. A., a resident, sued out
of the circuit court of a county an attachment against a foreign
corporation, and the officer to whom the writ was directed returned
that by virtue of it he had seized and attached certain property,
and served a copy of the writ, with a copy of the inventory of the
attached property, on the defendant by delivering the same
personally in said county, to B., agent of the said defendant. No
appearance was entered by the corporation, and A. recovered a
judgment
in personam for the amount of his demand. The
record of it was in another suit offered in evidence to support a
plea of setoff, and an objection was made to its admissibility that
the court which rendered the judgment had not jurisdiction of the
parties.
Held:
1. That the record was properly excluded, it not appearing
therefrom that the corporation was doing business in the state at
the time of the service of the writ on B.
2. Had that fact appeared, the corporation might have shown that
his relations to it did not justify such service.
The facts are stated in the opinion of the Court.
MR. JUSTICE FIELD delivered the opinion of the Court.
This action was brought by the plaintiff in the court below to
recover the amount due on two promissory notes of the defendants,
each for the sum of $2,500, bearing date on the second of August,
1877, and payable five months after date, to the order
Page 106 U. S. 351
of the Winthrop Mining Company at the German National Bank, in
Chicago, with interest at the rate of seven percent per annum.
To the action the defendants set up various defenses, and, among
others, substantially these: that the consideration of the notes
had failed; that they were given with two others of like tenor and
amount to the Winthrop Mining Company, a corporation created under
the laws of Illinois, in part payment for ore and other property
sold to the defendants upon a representation as to its quantity,
which proved to be incorrect; that only a portion of the quantity
sold was ever delivered, and that the value of the deficiency
exceeded the amount of the notes in suit; that at the commencement
of the action, and before the transfer of the notes to the
plaintiff, the Winthrop Mining Company was indebted to the
defendants in a large sum,
viz., $10,000, upon a judgment
recovered by them in the Circuit Court of Marquette County, in the
State of Michigan, and that the notes were transferred to him after
their maturity and dishonor and after he had notice of the defenses
to them. On the trial, evidence was given by the defendants tending
to show that the plaintiff was not a
bona fide holder of
the notes for value. A certified copy of that judgment was also
produced by them and offered in evidence, but on his objection that
it had not been shown that the court had obtained jurisdiction of
the parties, it was excluded, and to the exclusion an exception was
taken. The jury found for him for the full amount claimed, and
judgment having been entered thereon, the defendants brought the
case here for review. The ruling of the court below in excluding
the record constitutes the only error assigned.
The judgment of the circuit court in Michigan was rendered in an
action commenced by attachment. If the plaintiffs in that action
were at its commencement residents of the state, of which some
doubt is expressed by counsel, the jurisdiction of the court, under
the writ, to dispose of the property attached cannot be doubted so
far as was necessary to satisfy their demand. No question was
raised as to the validity of the judgment to that extent. The
objection to it was as to evidence
Page 106 U. S. 352
that the amount rendered was an existing obligation or debt
against the company. If the court had not acquired jurisdiction
over the company, the judgment established nothing as to its
liability beyond the amount which the proceeds of the property
discharged. There was no appearance of the company in the action,
and judgment against it was rendered for $6,450 by default. The
officer to whom the writ of attachment was issued returned that by
virtue of it, he had seized and attached certain specified personal
property of the defendant, and had also served a copy of the writ,
with a copy of the inventory of the property attached, on the
defendant, "by delivering the same to Henry J. Colwell, Esq., agent
of the said Winthrop Mining Company, personally, in said
county."
The laws of Michigan provide for attaching property of
absconding, fraudulent, and nonresident debtors and of foreign
corporations. They require that the writ issued to the sheriff, or
other officer by whom it is to be served, shall direct him to
attach the property of the defendant, and to summon him if he be
found within the county, and also to serve on him a copy of the
attachment and of the inventory of the property attached. They also
declare that where a copy of the writ of attachment has been
personally served on the defendant, the same proceedings may be had
thereon in the suit in all respects as upon the return of an
original writ of summons personally served where suit is commenced
by such summons. 2 Comp.Laws 1871, secs. 6397 and 6413.
They also provide, in the chapter regulating proceedings by and
against corporations, that
"Suits against corporations may be commenced by original writ of
summons, or by declaration, in the same manner that personal
actions may be commenced against individuals, and such writ, or a
copy of such declaration, in any suit against a corporation, may be
served on the presiding officer, the cashier, the secretary, or the
treasurer thereof, or, if there be no such officer or none can be
found, such service may be made on such other officer or member of
such corporation, or in such other manner as the court in which
such suit is brought may direct,"
and that
"In suits commenced by attachment in favor of a resident of this
state against any corporation created by or under the laws of any
other state,
Page 106 U. S. 353
government, or country, if a copy of such attachment and of the
inventory of property attached shall have been personally served on
any officer, member, clerk, or agent of such corporation within
this state, the same proceedings shall be thereupon had, and with
like effect, as in case of an attachment against a natural person,
which shall have been returned served in like manner upon the
defendant."
2 Comp.Laws 1871, secs. 6544 and 6550.
The courts of the United States only regard judgments of the
state courts establishing personal demands as having validity or as
importing verity where they have been rendered upon personal
citation of the party, or, what is the same thing, of those
empowered to receive process for him, or upon his voluntary
appearance.
In
Pennoyer v. Neff, we had occasion to consider at
length the manner in which the state courts can acquire
jurisdiction to render a personal judgment against nonresidents
which would be received as evidence in the federal courts, and we
held that personal service of citation on the party or his
voluntary appearance was, with some exceptions, essential to the
jurisdiction of the court. The exceptions related to those cases
where proceedings are taken in a state to determine the status of
one of its citizens toward a nonresident, or where a party has
agreed to accept a notification to others or service on them as
citation to himself.
95 U. S. 95 U.S.
714.
The doctrine of that case applies in all its force to personal
judgments of state courts against foreign corporations. The courts
rendering them must have acquired jurisdiction over the party by
personal service or voluntary appearance, whether the party be a
corporation or a natural person. There is only this difference: a
corporation, being an artificial being, can act only through
agents, and only through them can be reached, and process must
therefore be served upon them. In the state where a corporation is
formed, it is not difficult to ascertain who are authorized to
represent and act for it. Its charter or the statutes of the state
will indicate in whose hands the control and management of its
affairs are placed. Directors are readily found, as also the
officers appointed by them to manage its business. But the moment
the boundary
Page 106 U. S. 354
of the state is passed difficulties arise; it is not so easy to
determine who represent the corporation there and under what
circumstances service on them will bind it.
Formerly it was held that a foreign corporation could not be
sued in an action for the recovery of a personal demand outside of
the state by which it was chartered. The principle that a
corporation must dwell in the place of its creation, and cannot, as
said by Chief Justice Taney, migrate to another sovereignty,
coupled with the doctrine that an officer of the corporation does
not carry his functions with him when he leaves his state,
prevented the maintenance of personal actions against it. There was
no mode of compelling its appearance in the foreign jurisdiction.
Legal proceedings there against it were therefore necessarily
confined to the disposition of such property belonging to it as
could be there found, and to authorize them legislation was
necessary.
In
McQueen v. Middleton Manufacturing Co., decided in
1819, the Supreme Court of New York, in considering the question
whether the law of that state authorized an attachment against the
property of a foreign corporation, expressed the opinion that a
foreign corporation could not be sued in the state, and gave as a
reason that the process must be served on the head or principal
officer within the jurisdiction of the sovereignty where the
artificial body existed; observing that if the president of a bank
went to New York from another state he would not represent the
corporation these, and that "his functions and his character would
not accompany him when he moved beyond the jurisdiction of the
government under whose laws he derived this character." 16 John.
(N.Y.) 5. The opinion thus expressed was not, perhaps, necessary to
the decision of the case, but nevertheless it has been accepted as
correctly stating the law. It was cited with approval by the
Supreme Court of Massachusetts, in 1834, in
Peckham v. North
Parish in Haverhill, the court adding that all foreign
corporations were without the jurisdiction of the process of the
courts of the commonwealth. 16 Pick. (Mass.) 274. Similar
expressions of opinion are found in numerous decisions, accompanied
sometimes with suggestions that the doctrine might be otherwise if
the foreign corporation sent its
Page 106 U. S. 355
officer to reside in the state and transact business there on
its account.
Libbey v. Hodgdon, 9 N.H. 394;
Moulin v.
Trenton Insurance Co., 24 N.J.L. 223.
This doctrine of the exemption of a corporation from suit in a
state other than that of its creation was the cause of much
inconvenience and often of manifest injustice. The great increase
in the number of corporations of late years and the immense extent
of their business only made this inconvenience and injustice more
frequent and marked. Corporations now enter into all the industries
of the country. The business of banking, mining, manufacturing,
transportation, and insurance is almost entirely carried on by
them, and a large portion of the wealth of the country is in their
hands. Incorporated under the laws of one state, they carry on the
most extensive operations in other states. To meet and obviate this
inconvenience and injustice, the legislatures of several states
interposed and provided for service of process on officers and
agents of foreign corporations doing business therein. While the
theoretical and legal view, that the domicile of a corporation is
only in the state where it is created, was admitted, it was
perceived that when a foreign corporation sent its officers and
agents into other states and opened offices, and carried on its
business there, it was, in effect, as much represented by them
there as in the State of its creation. As it was protected by the
laws of those states, allowed to carry on its business within their
borders, and to sue in their courts, it seemed only right that it
should be held responsible in those courts to obligations and
liabilities there incurred.
All that there is in the legal residence of a corporation in the
State of its creation consists in the fact that by its laws the
corporators are associated together and allowed to exercise as a
body certain functions, with a right of succession in its members.
Its officers and agents constitute all that is visible of its
existence, and they may be authorized to act for it without as well
as within the state. There would seem therefore to be no sound
reason why, to the extent of their agency, they should not be
equally deemed to represent it in the states for which they are
respectively appointed when it is called to legal responsibility
for their transactions.
Page 106 U. S. 356
The case is unlike that of suits against individuals. They can
act by themselves, and upon them process can be directly served,
but a corporation can only act and be reached through agents.
Serving process on its agents in other states, for matters within
the sphere of their agency, is, in effect, serving process on it as
much so as if such agents resided in the state where it was
created.
A corporation of one state cannot do business in another state
without the latter's consent, express or implied, and that consent
may be accompanied with such conditions as it may think proper to
impose. As said by this Court in
Lafayette Insurance Co. v.
French,
"these conditions must be deemed valid and effectual by other
states and by this Court, provided they are not repugnant to the
Constitution or laws of the United States or inconsistent with
those rules of public law which secure the jurisdiction and
authority of each state from encroachment by all others, or that
principle of natural justice which forbids condemnation without
opportunity for defense."
59 U. S. 18 How.
404,
59 U. S. 407;
Paul v.
Virginia, 8 Wall. 168.
The state may therefore impose as a condition upon which a
foreign corporation shall be permitted to do business within her
limits that it shall stipulate that in any litigation arising out
of its transactions in the state, it will accept as sufficient the
service of process on its agents or persons specially designated,
and the condition would be eminently fit and just. And such
condition and stipulation may be implied, as well as expressed. If
a state permits a foreign corporation to do business within her
limits, and at the same time provides that in suits against it for
business there done, process shall be served upon its agents, the
provision is to be deemed a condition of the permission, and
corporations that subsequently do business in the state are to be
deemed to assent to such condition as fully as though they had
specially authorized their agents to receive service of the
process. Such condition must not, however, encroach upon that
principle of natural justice which requires notice of a suit to a
party before he can be bound by it. It must be reasonable, and the
service provided for should be only upon such agents as may be
properly deemed representatives of the foreign corporation. The
decision of this
Page 106 U. S. 357
Court in the case of
Lafayette Insurance Co. v. French,
to which we have already referred, sustains these views.
The State of Michigan permits foreign corporations to transact
business within her limits. Either by express enactment, as in the
case of insurance companies, or by her acquiescence, they are as
free to engage in all legitimate business as corporations of her
own creation. Her statutes expressly provide for suits being
brought by them in her courts, and for suits by attachment being
brought against them in favor of residents of the state. And in
these attachment suits, they authorize the service of a copy of the
writ of attachment, with a copy of the inventory of the property
attached, on "any officer, member, clerk, or agent of such
corporation," within the state, and give to a personal service of a
copy of the writ and of the inventory on one of these persons the
force and effect of personal service of a summons on a defendant in
suits commenced by summons.
It thus seems that a writ of foreign attachment in that state is
made to serve a double purpose -- as a command to the officer to
attach property of the corporation and as a summons to the latter
to appear in the suit. We do not, however, understand the laws as
authorizing the service of a copy of the writ, as a summons, upon
an agent of a foreign corporation unless the corporation be engaged
in business in the state, and the agent be appointed to act there.
We so construe the words "agent of such corporation within this
state." They do not sanction service upon an officer or agent of
the corporation who resides in another state, and is only casually
in the state, and not charged with any business of the corporation
there. The decision in
Newell v. Great Western Railway
Co., reported in 19 Mich. 336, supports this view, although
that was the case of an attempted service of a declaration as the
commencement of the suit. The defendant was a Canadian corporation
owning and operating a railroad from Suspension Bridge in Canada to
the Detroit line at Windsor, opposite Detroit, and carrying
passengers in connection with the Michigan Central Railroad
Company, upon tickets sold by such companies respectively. The suit
was commenced in Michigan, the declaration alleging a contract by
the defendant to carry the plaintiff over its road, and its
violation of the contract by
Page 106 U. S. 358
removing him from its cars at an intermediate station. The
declaration was served upon Joseph Price, the treasurer of the
corporation, who was only casually in the state. The corporation
appeared specially to object to the jurisdiction of the court, and
pleaded that it was a foreign corporation, and had no place of
business or agent or officer in the state, or attorney to receive
service of legal process, or to appear for it, and that Joseph
Price was not in the state at the time of service on him on any
official business of the corporation. The plaintiff having demurred
to this plea the court held the service insufficient. "The
corporate entity," said the court,
"could by no possibility enter the state, and it could do
nothing more in that direction than to cause itself to be
represented here by its officers or agents. Such representation
would, however, of the corporation, and not as an isolated the mere
presence here of a person possessing, when in Canada, the relation
to the company of an officer or agent. To involve the
representation of the company here, the supposed representative
would have to hold or enjoy in this state an actual present
official or representative status. He would be required to be here
as an agent or officer of the corporation, and not as isolated
individual. If he should drop the official or representative
character at the frontier, if he should bring that character no
further than the territorial boundary of the government to whose
laws the corporate body itself, and consequently the official
positions of its officers also, would be constantly indebted for
existence, it could not, with propriety, be maintained that he
continued to possess such character by force of our statute.
Admitting therefore for the purpose of this suit, that in given
cases the foreign corporation would be bound by service on its
treasurer in Michigan, this could only be so when the treasurer,
the then official, the officer then in a manner impersonating the
company, should be served. Joseph Price was not here as the
treasurer of the defendants. He did not then represent them. His
act in coming was not the act of the company, nor was his remaining
the business or act of any besides himself. He had no principal and
he was not an agent. He had no official status or representative
character in this state."
P. 344.
According to the view thus expressed by the Supreme Court
Page 106 U. S. 359
of Michigan service upon an agent of a foreign corporation will
not be deemed sufficient unless he represents the corporation in
the state. This representation implies that the corporation does
business, or has business in the state for the transaction of which
it sends or appoints an agent there. If the agent occupies no
representative character with respect to the business of the
corporation in the state, a judgment rendered upon service on him
would hardly be considered in other tribunals as possessing any
probative force. In a case where similar service was made in New
York upon an officer of a corporation of New Jersey accidentally in
the former state, the Supreme Court of New Jersey said that a law
of another state which sanctioned such service upon an officer
accidentally within its jurisdiction was "so contrary to natural
justice and to the principles of international law that the courts
of other states ought not to sanction it."
Moulin v. Trenton
Insurance Co., 24 N.J.L. 232, 234.
Without considering whether authorizing service of a copy of a
writ of attachment as a summons on some of the persons named in the
statute -- a member, for instance, of the foreign corporation, that
is, a mere stockholder -- is not a departure from the principle of
natural justice mentioned in
Lafayette Insurance Co. v.
French, which forbids condemnation without citation, it is
sufficient to observe that we are of opinion that when service is
made within the state upon an agent of a foreign corporation it is
essential, in order to support the jurisdiction of the court to
render a personal judgment, that it should appear somewhere in the
record -- either in the application for the writ or accompanying
its service or in the pleadings or the finding of the court -- that
the corporation was engaged in business in the state. The
transaction of business by the corporation in the state, general or
special, appearing, 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 company, that his
duties were limited to those of a subordinate employee, or to a
particular
Page 106 U. S. 360
transaction, or that his agency had ceased when the matter in
suit arose.
In the record, a copy of which was offered in evidence in this
case, there was nothing to show, so far as we can see, that the
Winthrop Mining Company was engaged in business in the state when
service was made on Colwell. The return of the officer, on which
alone reliance was placed to sustain the jurisdiction of the state
court, gave no information on the subject. It did not, therefore,
appear even
prima facie that Colwell stood in any such
representative character to the company as would justify the
service of a copy of the writ on him. The certificate of the
sheriff, in the absence of this fact in the record, was
insufficient to give the court jurisdiction to render a personal
judgment against the foreign corporation. The record was therefore
properly excluded.
Judgment affirmed.