Midland Pacific Railway Co. v. McDermid

Mr. Justice Scott delivered the opinion of the Court: Leave was asked by defendants before final judgment to amend their pleas. Under our statute, as construed by the former decisions of this court, the leave asked might, with great propriety, have been granted. Humphrey v. Phillips, 57 Ill. 132; Drake v. Drake, 83 Ill. 528. But it is a matter of no consequence, as the amendment proposed would not essentially aid defendants’ pleas. The decision of this case depends mainly on the construction that shall be given to that section of the statute that provides for obtaining service of process upon corporations. It is as follows: “An incorporated company may be served with process by leaving a copy thereof with its president, if he can be found in the county in which the suit is brought. If he shall not be found in the county, then by leaving a copy of the process with any clerk, secretary, superintendent, general agent, cashier, principal director, engineer, conductor, station agent or any agent of said company found in the county.” Practice Act, sec. 5, Bev. Stat. 1874. It was held in Mineral Point Railroad Co. v. Keep, 22 Ill. 9, the act of 1853 on this subject, which is, in substance, the same as the section cited, was not confined by its terms to domestic corporations, but was designed to procure service upon railroad companies having their offices and officers in foreign States, and yet do business and have their agents and their property in this State. Conceding the correctness of the rule stated, as we do, it has no application to the case in hand. Defendants had no agents in this State. It is alleged, and the demurrer, of course, admits the same to be true, that defendants are corporations “ existing and doing business under and by virtue of the laws of the State of Nebraska, and not elsewhere,” and that Converse, upon whom the summons was served, as superintendent of the defendant companies, was not at the time in Cook county upon any business of defendants, but was temporarily passing through the county of Cook “on his way to his home and residence in the State of Nebraska.” There being no local agents of defendants in this State, there could be no one on whom service of process could be rightfully had. According to the pleas, defendants existed and were doing business in the State of Nebraska, and not elsewhere. That averment excludes the idea they were doing business in this State, and hence had no agents in the State within the jurisdiction of our courts. It was certainly never intended that service could be had on a foreign corporation by leaving a copy of the process with any officer or agent of the company that might chance to pass through the State on his private business. Had the legislature intended to so provide, it would certainly have used more apt words to express that intention. There is great justness in the construction heretofore given to this clause of the statute, that where foreign railroad companies do business in this State and have here local agents, service of process may be had on them in like manner as upon domestic companies. That is the broadest construction that can be given to this section of the statute, and it does not authorize service of process upon foreign corporations by leaving a copy thereof with any officer or agent that might be passing through the State on his private business, and thus bring such companies within the jurisdiction of our courts. As the pleas were not to the jurisdiction of the court over the subject matter of the suit, but only as to defendants, we do not understand it was necessary the pleader should allege what court had jurisdiction. It is enough, it appears the court did not have jurisdiction over defendants or either of them. The judgment will be reversed and the cause remanded. Judgment reversed. Mr. Justice Walker: I am unable to concur in the decision in this case. I hold that the statute authorized the service, and that it was good, and the court thus acquired jurisdiction to try the case.