Barnabee v. Holmes

DeemeR, J. 2 The principal question in the case is the sufficiency of the service of the original notice in the main action on Chas. K. Bacon. The plaintiffs in the first action mentioned in the title are a copartnership, doing business under the name of the Bostonian Opera Company. They areveaeh and all nonresidents of the státe, and their business is that of' giving musical entertainments in the various cities of the United States. When Holmes commenced his original action they were at Sioux City for the purpose of giving an entertainment, and the notice was iserved on Bacon, who, it is claimed, was acting manager and treasurer of the company. Appellant contends that the service was sufficient, under section 3532 of the Code, which reads as follows: “When a corporation, ■company or individual has for the transaction of any business, an office or agency in any county other than that in which the principal resides, service may be made on any agent or clerk employed in such office or agency, in all ■actions, growing out of or connected with the business of that office or agency.” In order to bring himself within the [584] purview of this section, Nielán must show not only that Barnabee et al., had an office in Sioux City, but that'the action grew out of some matter connected with the business of that agency, and that service was made on an agent or clerk employed in that office or agency. It may be conceded, for the purpose of the case, that Barnabee et al., had an agency in Sioux City during the time their company was there, which was two ‘nights, and that Bacon was employed in that agency as general manager. But his duties seem to have been to collect the money received for ’the entertainment, and to pay all the bills in connection therewith. Holmes’ claim grew out of the fact that two trunks belonging to him were, without the knowledge of Barnabee or his associates, or any of their agents, by mistake of the railway employes, placed in their special car, in the city of Denver, and carried to Omaha and Sioux City. As soon as discovered, — which as to one of them, was when the car reached Omaha, and, as to the other, when it reached Sioux City,' — • they were returned to Holmes. When Bacon discovered that one of the trunks belonging to plaintiff was at Sioux City, he caused it to be immediately returned to Holmes. He did nothing at Sioux City which caused Holmes any damage, and the action was in no way connected with his alleged agency at Sioux City. What he did was by way of causing the return of Holmes’ trunk, which had been taken by the company through mistake, in Denver, Colo. Surely the action 'did not grow out of, nor was it in any manner connected with the agency at Sioux City. Bacon was not one of the principals in the transaction, and the service on him can only be sustained in the event it is shown that the action grew out of, or was in some manner connected with the business of the agency at Sioux City. That business was simply to give a musical entertainment in that city, to collect the receipts, and to pay the bills. The trunk matter did not grow out of business of that agency, nor was it in any manner connected therewith; hence service on Bacon did not confer jurisdic [585] tion. In all the cases cited, by appellant the business grew out of, or was connected with, the particular agency in which the party on whom the service was made was employed. It appears that, as soon as the company reached Sioux City, Bacon went immediately to the car, found Holmes’ trunk, and caused it to be double-checked to Council Bluffs, as per Holmes’ request. It also appears that there were different departments of the business done by the Bostonian Opera Company, each having a manager or chief, and that there was a baggage master whose duty it was to look after the baggage; and each manager seemed to be in control of his department, subject, no doubt, to the general control of Bacon. Appellant argues, however, that Holmes’ trunks were wrongfully retained by Barnabee et al., for three days in Sioux City, Iowa, and that this detention was a matter growing out of the agency at Sioux City. The evidence shows, however, that after leaving Denver the company gave an entertainment at Omaha, where they discovered one of the trunks, and returned it; that from there they went to Sioux Balls for a one-night stand, and from Sioux Balls to Sioux City for two nights. All baggage except that actually needed for the performance, including Holmes’ trunk, was shipped directly from Omaha to Sioux City, where it remained, awaiting the arrival of the company. Bacon was informed of the loss of Holmes’ trunks, and as soon as he arrived at Sioux City, he discovered them, or one of them, and had it immediately re-checked, as stated. Surely no business can grow out of an agency until it be established, and Bacon’s agency was not established until he arrived at Sioux City. When he arrived there he immediately caused the trunks to be returned. Manifestly, the taking of the trunks and the delay in returning them, did not grow out of, nor was it in any manner connected with, the Sioux City agency, established when Bacon, the agent of the company, arrived there. There being no service on Barnabee et al., the judgment rendered by the Woodbury county district court [586] Avas without jurisdiction. See, as sustaining our conclusions, Upton Manufacturing Co. v. Stewart, 61 Iowa, 209; State Insurance Co. v. Granger, 62 Iowa, 273; Wickens v. Goldstone, 97 Iowa, 646. [586] II. Reference has already been made to the fact that, after judgment was rendered in Woodbury county, Holmes commenced action in the courts of Cook county, Illinios, on the same claim. This resulted in a compromise judgment, but, before the compromise Avas effected, Holmes assigned his claim to another, Avho really made the settlement. A transcript of the Woodbury county judgment, showing Nielan’s lien, Avas forwarded to Chicago, for use in the proceedings there. There is no evidence, however, that defendants had any notice of Nielan’s claims, except as shoAvn by the attorney’s lien noted on the judgment from which the transcript was taken. Nielan claims that is was agreed between him and Holmes that he (Nielan) should have one-half of the amount recovered. Of course, this agreement would not be binding on Barnabee et al., even with notice, unless Nielan had in some manner converted his claim into a lien; and even then there could be no lien if the judgment Avas rendered by a court having no jurisdiction. Assuming, however, that the Woodbury court had jurisdiction, and that Barnabee et al., had notice of plaintiff’s lien, it appears that Holmes represented that he had authority from Nielan to^ settle tire claim in full, and that they paid the amount agreed upon with this understanding. Holmes’ statements as to authority would not, hoAvever, be binding on Nielan unless authorized; and Ave have, then, this further question: Did Nielan authorize Holmes to settle the claim in full, relying on Holmes to pay him half of what he received ? This is purely a question of fact. From a careful examination of the record, Ave are led to the conclusion that the trial court was justified in finding in the law case that Nielan gave Holmes authority to' settle the whole controversy, including his fee. To set out the testimony [587] from which this result is reached would unduly extend the opinion, and we content ourselves with stating the ultimate facts. Holmes’ attorney in Chicago wrote Nielan for a transcript of the Iowa judgment. Nielan acknowledged receipt of the letter, promised to send the transcript on receipt of transcript fee, and expressed the hope that they (meaning Holmes and the attorney) would succeed in obtaining judgment and collecting the same. Thereafter he sent the transcript, and again expressed the hope that they would be able to secure $200; that being the amount tied up by garnishment in the Chicago' courts. He thus authorized the Chicago suit, and was undoubtedly bound by any settlement made thereof. This settlement, of course, included the whole; claim. The letters which passed between them indicate that Nielan agreed to look to Holmes for his compensation. Nielan filed no lien on the judgment rendered by the Chicago. court, and, as that'action appears to have been brought by Holmes in his individual capacity, he had authority to- collect and settle the full amount thereof; and, as the judgments were for the same cause of action, a settlement of the one, of necessity, extinguished the other. Importance is attached to the fact that a judgment in favor of Holmes was rendered by the Cook county court, ostensibly, at least, with the authority of Nielan, and satisfaction of that .judgment (it being for the same cause of action as the one involved in the Iowa judgment) amounted to an extinguishment of the latter. This, of itself, disposes of the injunction proceedings. The decree of the trial court, permanently enjoining the sheriff and Nielan from enforcing the Iowa judgment, and -the order dismissing the plaintiff’s action to recover attorney’s fees, are sustained. — Aeeirmed.