Boggs v. Inter-American Mining & Smelting Co.

Schmucker, J., delivered the opinion of the Court. The first of the cross appeals in this case is by William R. Boggs, the plaintiff below, from an order of the Superior Court of Baltimore City striking out upon terms a final judgment theretofore rendered in his favor against the Inter-American Mining and Smelting Company. The second is by the said company, the defendant below, from an order of the same Court, refusing upon its application to lay a rule .security for costs upon the plaintiff who was alleged to be a non-resident *383 of this State. The two appeals were heard together and they can be disposed of by one opinion. The Mining Company was incorporated in the District of Columbia, but for sometime prior to March 7th, 1906, its office, where its records were kept and from which its general business was transacted, was in the Calvert Building in Baltimore, and during that time H. C. Turnbull, Jr., who did business in Baltimore City and resided in Baltimore County, was president of the corporation. During the time that the company was thus located in Baltimore City, its president, purporting to act in its behalf, employed the plaintiff, Boggs, as a mining engineer at a salary of $200. per month and personal and travelling expenses. On May 28th, 1906, Boggs sued the company in the Superior Court to recover his salary and expenses for October, November and December, 1905 and January, 1906, amounting in the aggregate to $ 1,188. The suit was brought under and in conformity to the Rule Day Acts in force in Baltimore City, and the defendant having been returned summoned and, having failed to appear to the action or plead, judgment by default was entered against it on June 27th, 1906. On the same day the judgment by default was duly extended for $1,188. and costs. On October 17th, 1906, the company appeared by counsel and moved to strike out the judgment on two grounds. 1st, That it, being a foreign corporation, was never served with summons within the meaning of the Maryland Statutes and was therefore not properly in Court when the judgment was rendered, and 2nd, that it was not amenable to this suit in the State of Maryland, and the judgment and all of the proceedings are void for want of jurisdiction. At the hearing of the motion to strike out the judgment testimony was taken tending to prove that on March 7th, 1906, the company moved its office and papers and seal from Baltimore to East Orange, New Jersey, and thereafter did not conduct any business in Maryland, and that Wm. R. Sweeney was elected president of the company to succeed Mr. Turn *384 bull, although the latter remained, and at the time of the institution of the suit was, one of its directors. P. M. Gover, a deputy sheriff of Baltimore City then testified that having been directed to serve the writ-in the case upon Mr, Turnbull he went over to the Calvert Building and asked Turnbull if he was one of the officers of the company, and he replied that he was not, but had formerly been its president. To the best of witness’ recollection Turnbull said that he knew the plaintiff Boggs and would like to see him get what was due him. The deputy reported this interview to the sheriff, who told him to serve the writ on Turnbull, as he was one of the directors and the deputy went back to do it but Turnbull shut the door in his face and would not let him serve it. The deputy further swore that he explained his object to Mr. Turnbull and the latter saw the writ, and said he was doing what he could to get Mr. Boggs righted in the matter, or something to that effect. He, the deputy, did not read the writ to Mr. Turnbull, but he explained it to him and Turn-bull looked at the writ. Thatcher Bell, another Deputy Sheriff, testified that he was told by the Sheriff to go over to the Calvert Building and serve the writ on Mr. Turnbull, that Gover had not been able to get a service. Witness went over to Turnbull’s office with the copies ready to serve and said to Turnbull “I have a paper to serve on you.” Turnbull said “I know what you have,” and started to go out. Witness reached for Turnbull with the copies and when the latter kept running, he commenced to read them, but Turnbull got'into the next room and slammed the door. Witness then laid the copies on the table and returned to the Sheriff’s office. He left the copies of the narr., notice to plead and writ in this case on the table in Turnbull’s office. Mr. Turnbull was put on the stand and his account then given of the visits of the two Deputy Sheriffs to him substantially corroborated their testimony except he denied that he said to the deputy Bell that he knew what he had or that he (Turnbull) saw or looked at the writ. There was also evidence tending to show that Mr. Turnbull never reported *385 the service of the writ on him to the company or took any steps himself looking to a defense of the action, and that the motion had been promptly made by the company when it learned of the suit and judgment. ’Assuming that Turnbull was a proper person upon whom to serve the writ and other papers, we are indisposed to consume much time in discussing the sufficiency of the service. It is apparent from the evidence that Turnbull was fully informed as to the institution of the suit by Boggs against the company and the desire of the Sheriff to summon the company by serving the papers on him as one of its directors and knew that the deputy was about to make that service when he attempted to elude him and evade the service by running out of the room and slamming the door in the officer’s face. Neither he nor the company he represented, if he did represent it for the purpose of the service, can be permitted to set up such a state of facts in support of the motion to strike out the judgment. He might as well have remained in his office and put his fingers in his ears while the deputy read the writ to him, and then claimed to be without information as to its contents or purpose. Defendants have frequently sought to evade or defeat service of process upon them by flight- or refusal to accept the process handed them by the serving officer but the Courts have held such efforts futile. Davison v. Baker, 24 How. Prac. 42; Slaught v. Robbins, 13 N. J. L. 349; Borden v. Borden, 63 Wis. 377; Baker v. Carrecton, 32 Me. 334. The laws of this State do not prescribe precisely how a summons shall be served upon an individual defendant'. .. The service must be a personal one, 2 Poe, Pleading and Practice? section 62, but the Sheriff is- not required to rea'd the writ to the defendant, although it is usual for him to read it or explain its nature and leave a copy of it with the-person served, Secs. 409 to 412 of Art. .23 of the Code provide for service' of process upon' corporations. : . ¡ Sec. 409 provides that any foreign corporation ,-whieh shall transaet business in this State “shall be. deéraed to exercise franchises” .here and “shall be--liable tó suit,.in any of .the *386 Courts of this State on any dealings or transactions therein.” Sec. 410. Authorizes process against a domestic corporation to be served on any president, director, &c. Sec. 411. Provides that suit may be brought in any Court in this State against any foreign corporation “deemed to hold and exercise franchises in this State,” by a resident of this State on any cause of action and by a non-resident plaintiff when the cause of action has arisen in this State, and that process in such suits may be served as provided in sec. 410, or it may be served, in the manner prescribed, upon any agent of such corporation. Sec. 412 provides that if any corporation, embraced in the preceding section after any liability shall occur within this State or after any contract shall have been made by it with any resident of this State, shall cease to have any agent within the State and no president, director or manager or the corporation can be found within the State, then in such case, service of any writ or process from the Courts of this State may be had on the person who was last the agent of such corporation, and the statute in such case further provides for the service of copies on the officers of the company wherever they may be found in cases where the writ has been served on the last agent. These sections when properly construed together provide, among other things, that where any corporation domestic or foreign shall, while transacting business in this State, incur a liability here or make a contract with any resident of this State and shall thereafter cease to have an agent here, service of any writ or process issuing from the Courts of this State, in respect to such liability or contract may be made upon the president or any director or manager of the corporation if he can be found in this State. In other words that if a foreign corporation comes here and transacts business and incurs liabilities here it shall quoad those liabilities remain subject to the jurisdiction of our Courts even though after incurring the liabilities it may have removed its office and business to another State. With these laws upon our statute book staring it in the face the defendant came here and transacted business *387 and in the course of that business incurred the liability for the enforcement of which the present suit was instituted. It cannot now be heard to say to the Courts of this State that no jurisdiction for the purposes of this suit was acquired over it, by service of process according to our laws upon one of its directors residing within this State, because since incurring the liability it has moved its office into another State. “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 subsequetly 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.” St. Clair v. Cox, 106 U. S. 350. The Court below in our opinion acquired jurisdiction over the defendant in this suit by the service of the process upon its resident director, Mr. Turnbull. In cases where the Court has jurisdiction over the subject-matter and the parties, “when the provisions of the Rule Day Acts have been conformed to and a judgment regularly entered thereunder it will not be stricken out upon motion of the defendant unless some reason be shown why the defendant was prevented from appearing and making defense in accordance with the requirements of the statute or upon some ground of fraud, surprise or mistake.” Mueller v. Michaels, 101 Md. 191; Griffith v. Adams, 95 Md. 170; Coulbourn v. Boulton, 100 Md. 350; Gemmell v. Davis, 71 Md. 458. When as in the present case amotion to set aside a judgment is made after the term at which it was rendered the proof of fraud, surprise or mistake must be clear and convincing. Abell v. Simon, 49 Md. 318; Smith v. Black, 51 Md. 247; Siewerd v. Farnen, 71 Md. 627. There being an absence from the record before us of proof of any of the grounds whose existence is essential to warrant the vacating of the judgment the learned Judge below erred in passing the order striking it out, and that order must be reversed. *388 The appeal from the order refusing to require the plaintiff to'furnish security for costs must be dismissed. ■ That order was not final in its nature nor did it settle any substantial right of the appellant or deny to it the means of further .defending the suit. Gittings v. State, 33 Md. 461; Chappell v. Funk, 57 Md. 479. Furthermore it does not appear from the record that the plaintiff is in fact a non-resident of the State. It is so stated in the application for the rule for security for costs but the application was made ex parte and was not sworn to nor accompanied by admission, affidavit or. proof of the fact of his alleged non-residence. Order striking out the judgment reversed with costs. Appeal from the order reftising to lay rule security for costs dismissed with costs. ■