Cobbey v. State Journal Co.

Letton, J. Tbe plaintiff in error brought this action in the district court for Gage county against the defendants in error, jointly, to recover damages for an alleged unlawful conspiracy by them for the malicious prosecution of an injunction suit. The defendant Stonebraker was the only defendant served with summons in that county, but a summons was issued to Lancaster county and served therein upon the other defendants. These defendants, the State Journal Company and the Nebraska State Journal Association, are corporations organized under the laws of this state, each having its principal place of business in Lancaster county and having no place of business in Gage county. The corporations appeared separately and objected to the jurisdiction of the court over their persons. The objections were sustained, and the suit dismissed as to them. The plaintiff seeks by this proceeding to review the judgment of dismissal. The question for determination is whether, when an action is rightly brought in any county, a summons may be issued to another county and served upon a domestic' corporation, or whether the provisions of section 55 of the code are exclusive as to the venue of actions against domestic corporations, whether sued alone or jointly. Section 55 is as follows: “An action other than one of those mentioned in the first three sections of this title, against a corporation created by the laws of this state, may be brought in the county in which it is situated, or has its principal office or place of business; but if such corporation be an insurance company, the action may be brought in the county where the cause of action, or some part thereof, arose,” “The first three sections” referred — 621 — to have reference to real estate. Sections 54, 56, 57, 58 and 59 refer to actions for specific canses and against specific individuals and corporations, the provisions of none of these sections having; reference to an action of the nature of this one. Section 60 provides: “Every other action must be brought in the county in Avliich the defendant, or some one of the defendants resides, or may be summoned.” All of those sections from 51 to 60 inclusive are found under title IV of the code, referring to “the county in which actions are to be brought.” Section 65, found under title V, which is entitled “Commencement of a Civil Action,” is as follows: “Where the action is rightly brought in any county, according to the provisions of title IV, a summons shall be issued to any other county, against any one or more of the defendants, at the plaintiff’s request.” Plaintiff in error contends that; this action, having been rightly brought in Gage county against- the defendant Stonebraker, a summons was properly issued from that county to Lancaster county for service upon the other defendants; while defendants in error insist that under section 55 no jurisdiction in such an action as this can be had over a domestic corporation, other than insurance companies, in a county other than that in which it is situated or has its principal office or place of business. Section 15, art. Ill of the constitution, provides: “The legislature shall not pass local or special laws in any of the following cases, that is to say: * * granting to any corporation, association, or individual any special or exclusive privileges, immunity, or franchise whatever.” Section 3, art. XI5, provides: “All corporations may sue and be sued in like cases as natural persons.” Section 4117, Ann. St., provides that corporations may have power “to sue and be sued, to complain and defend in courts of law and equity”; and it has been held that the general provisions of the code authorizing a confession of judgment by any person are by reason of these provisions applicable to corporations. Solomon v. Schneider, — 622 — 56 Neb. 680. It seems apparent that the purpose of the makers of the organic law and of the legislature was to confer no greater or higher privileges upon corporations, with respect to immunity from suit than are conferred upon natural persons, and that in the eye of the law a corporation is regarded, so far as liability to sue and be sued is concerned, the same as an ordinary individual. 10 Cyc. 1333. . So that, in proceeding to the consideration of the various sections of the statute bearing upon the question, that construction should be given which, without imposing undue burdens upon domestic corporations, would most nearly assimilate their condition, in respect to liability to suit, to that of natural persons. It may be well to notice in this connection that this is the first time this question has been presented to the court for consideration, and that it has not been an uncommon' practice for actions to be brought against individuals and corporations, service to be had upon the individual, and a summons sent to another county for the corporation. This practice of itself, of course, would constitute no reason for setting aside a plain statutory provision, but, in a matter as to which the statute is ambiguous and requires construction, the fact of acquiescence by the profession in the practice for many year's is worthy of consideration. In construing statutes, all provisions bearing upon the same subject should be taken together and the intention of the legislature determined from a comprehensive survey of the whole, rather than by passing upon isolated sections. The position of defendants in error is, in effect, that the word “may” in section 55 means “must,”' ■ • that the section should read that an action other than one of those mentioned in the first three sections of this title, against a corporation created by the laws of this state, other than an insurance company, must be brought in the county in which it is situated, or has its principal office or place of business, and they take the position that, in an action other than those provided for in sections 51, 52 and 53 of the code, no jurisdiction is obtained over a — 623 — domestic corporation, not an insurance company, in a county in which it neither is situated nor has its principal office or place of business, by issuance of summons to another county where it has its principal office or place of business, and service there. This action is for a joint tort, in which one of the defendants was properly served in Gage bounty. The action, then, was rightly brought as to him in that county, and if the other defendants had been individuals there is no question hut that they might have been summoned in any other county in which they might have been found, and jurisdiction thereby obtained over their persons. Does the fact that they are domestic corporations alter the case? In Adair County Bank v. Forrey, 74 Neb. 811, we construed section 59 of the code, which is in terms equally as exclusive as to actions against nonresidents of this state as section 55 is with reference to corporations. It provides that an action other than one of those mentioned in the first three sections of this title, against a nonresident of this state, may be brought in any county in which there may be property or debts owing to said defendant, or where said defendant may be found, and it was strenuously urged, upon the same grounds as urged by the defendants in error in this case, that this section was exclusive, that it related to venue, and that an action could not be brought in one county and a summons sent to another for service upon a nonresident, so as to confer jurisdiction upon the court of the first county. In that case it is said: “Under section 59, title IV, relating to venue, the proper venue of the action was in Douglas county. The provisions of title V do not apply to venue, but provide for the manner in which actions may be commenced, and section 65 provides for the place where summons may be served when an action has been rightly brought under the provisions of title IV. It is an imperative rule of construction that effect be given, if possible, to every portion of a statute. To adopt one construction would eliminate — 624 — section 65 entirely, while the other construction gives effect to both sections. Further than this, - the construction contended for by defendant in error would necessitate a multiplicity of actions in a case where nonresident defendants were numerous, if service might be had upon them in different counties within this state, whereas, by the other construction, one action only would be required, though they might be summoned in different counties. These sections must be construed together, and, v here an action has rightly been brought in one county, a summons may be issued to any other county in the state, and served upon any person personally present therein, whether resident or nonresident. If a person is personally present within the confines of the state, it makes no difference whether he is a resident or nonresident, so far as his liability to personal service of summons is concerned. A nonresident has no greater privilege in that regard than a resident of the state.” Recently this identical question has been presented to the courts of Ohio, but apparently has not yet reached the court of last resort in that state. In Baltimore & O. R. Co. v. McPeek, 16 Ohio C. C. 87, the facts were that two railroad companies objected to the jurisdiction upon like grounds as in this case. The court held that the venue against one of the companies was properly laid in the county where the suit was begun, and that, since the petition averred a joint liability, the other defendant Avas properly brought .into court under the provisions of the section of their code Avhich is the same as our section 65. Two later cases arose in that state — Stanton v. Enquirer Co., 7 Ohio N. P. 589; Baldwin v. Wilson, 7 Ohio N. P. 506. It is pointed out by the Ohio court that there are no special provisions governing the venue for actions brought jointly against two or more corporations, or against a corporation and individuals jointly, in the sections preceding section 60, and therefore such actions are embraced within the class denominated “other” actions in this section, and that, if the construction contended for by — 625 — the defendant in error is correct, then there are absolutely no provisions whereby a corporation and an individual can he sued together in a county outside of the residence of the corporation, nor can a suit ever he maintained against two corporations jointly, if they are residents of different counties, and, if this Avas intended, then it can be said that corporations enjoy immunities not panted to them, and that a citizen is not protected in pis right to enforce a claim, against a corporation as he is against a natural person under the law of the state. See, also, Newberry v. Arkansas, K. & C. R. Co., 52 Kan. 613. In Nebraska Mutual Hail Ins. Co. v. Meyers, 66 Neb. 657, opinion by Mr. Commisssioner Ames, it is said, after stating that title IY applies alone to venue: . . “Section 60 alone, among all the provisions of this title, treats of transitory actions, and permits the venue in such cases to be laid in any county in Avhich the defendant, or one of several defendants, resides or may be summoned. And, after quoting section 65, he proceeds: “We think an erroneous impression as to the force of this section has prevailed, to some extent, among members of the bar. It is not confined in its operation, as some have seemed to suppose, to transitory actions, in which at least one of the defendants has been properly served with process in the county in which the action is brought, but, as its language expresses, applies to all actions, local as well as transitory, which are ‘rightly brought in any county.’ ” _ , . . _ , . While certain expressions in Western Travelers Accident Ass’n v. Taylor, 62 Neb. 783, may be taken to be inconsistent with these views, a consideration of the question actually decided therein will show no conflict. In that case it is held that a domestic insurance company may be sued either in the county where its principal place of business is fixed by its charter, although its actual business is carried on and its offices are in another county, or in the county where it is situated and maintains a. — 626 — place of business, or in any county where the cause or some part thereof arose. In that case the defendant was a mutual insurance company located at Grand Island. The cause of action arose in Ioiva. The only service had was upon its secretary while temporarily in Douglas county, where the company had no agency and no place of business, and the court held that such a service did not confer jurisdiction upon the corporation. This was an action against the corporation alone, and it is very clear that the service attempted to be upheld was not justified by any provisions of the statute. We are of the opinion that a proper regard for the legislative intent requires that the provisions of all these sections should be construed together; that the intention was to make it possible to bring a joint action against several defendants in a county in which one might be found, and thus prevent a number of suits for the same cause; that it was not the intention of the legislature to treat domestic corporations, when defendants in joint actions, in any other or different manner than natural persons; and that, if the venue was properly laid in Gage county against one of the defendants, a summons may properly issue from that county to any other county in the state, to be served in the manner provided by law for service upon either corporations or individuals. The judgment of the district court is reversed and the cause remanded. REVERSED.