Farrow v. Railway Conductors' Co-operative Protective Ass'n

Ostrander, J. Plaintiff is a resident of the State of Washington; defendant is a Michigan corporation. Defendant’s predecessor in business issued a policy to plaintiff in June, 1908, upon which suit was begun in the State of Washington, in the county of Spokane, in the superior court, in April, 1910. Such proceedings were had in that court and cause that on November 4, 1910, plaintiff recovered therein a judgment against defendant’s .predecessor in business for $500 damages and $50 costs. Upon that judgment, in July, 1911, this suit was begun in the circuit court for the county of Wayne, Mich., was tried by the court, and resulted in a judgment for defendant. The action is — 641 — assumpsit. The issuing of the policy, the recovery of the foreign judgment, and that, after the policy was issued, the defendant took over all the assets and assumed all of the liabilities of the original insurer are facts alleged, as well as the fact that defendant appeared in the foreign court and contested the suit upon the merits. The plea is the general issue. From the findings filed by the court, it appears that the court disposed of the matter upon the grounds that the transcript of the judgment of the Washington court does not show that the court acquired jurisdiction of the defendant, and that, in fact, it did not acquire jurisdiction. The transcript was admitted in evidence, the plaintiff rested, and the defendant offered testimony, in the course of doing which defendant asked permission to amend its plea by a notice that the jurisdiction of the Washington court was questioned, and, over objection, was permitted to amend. Whether a notice of special defenses was actually framed, we are not informed. The cause proceeded as though defendant had the right to attack the jurisdiction of the Washington court. Plaintiff did not ask for a continuance. The testimony for defendant tended to prove that one A. D. Mars, upon whom service of process in Washington appears by the transcript to have been made, was not authorized by defendant to accept service of process, and never acted for defendant in any way, unless to recommend some person as a member of defendant; that defendant never applied to do business in Washington, and never had an agent in the State soliciting business for defendant; that defendant never has had, and has not now, any agents soliciting business. It appears from the transcript offered in evidence that a complaint was verified April 20, 1910; that a summons, without date, was issued, apparently by the — 642 — attorneys for plaintiff; and that proof of service of the complaint and summons was filed June 1, 1910, with the clerk. The return, in the form of an affidavit of one George H. Hale, is that: “He personally served the said A. D. Mars, trustee and agent of Railway Conductors’ Protective Association, the defendant, by delivering to said A. D. Mars, trustee and agent of said defendant corporation, a true copy of said summons and complaint.” The summons is addressed to the Railway Conductors’ Protective Association, a corporation, and the complaint alleges that the defendant is a corporation organized and existing under and by virtue of the laws of the State of Michigan doing business in the city and county of Spokane, State of Washington. The oral testimony given in the case at bar, which is undisputed, is to the effect that defendant in the case at bar was not incorporated until September, 1910. Prior to that time, a voluntary association, named as in the action in the Washington court, was in existence, and it issued the policy in question to plaintiff. It is said by counsel for plaintiff that the defendant in the present suit was incorporated in 1909, and that the record is not in this respect accurate. However this may be, it is apparent that the defendant in the Washington court was not the defendant in this action, did not have the same name, and was not charged as the successor of, or as having assumed the liabilities of, the association which issued the policy. We said in Marshall v. R. M. Owen & Co 171 Mich. 232, 238 (137 N. W. 204) : _ “It is the general rule, and it applies to corporations, that, whenever it appears from inspection of the record of a court of general jurisdiction that the defendant, against whom, a personal judgment or decree was rendered, was at the time of the alleged service without the territorial limits of the court’s jurisdiction, and thus beyond the reach of its process, — 643 — and that he never appeared in the action, the presumption of jurisdiction over his person ceases, and the burden of establishing jurisdiction is cast upon the party who invokes the benefit or the protection of the judgment or decree.” This is the rule in the State of Washington. Cunningham v. Hydraulic Co., 18 Wash. 524 (52 Pac. 235). It would be precisely applicable here if the defendant in the Washington court was the defendant in the present suit. Here, as in the case of Marshall v. R. M. Owen & Co., no proof was made of the law of the State in which the judgment sued upon was rendered; none, except as furnished by the transcript, that the defendant in that action ever did any business in that State. But, it is said, this defendant appeared specially in the Washington court, and submitted to the determination of the court the question of jurisdiction. Manifestly it could submit to that court no question of jurisdiction over this defendant. The transcript does not contain the plea to the jurisdiction, if one was filed, or the motion, if the question was raised by motion, or the ruling of the court. It . does appear by a recital in the answer which was filed that defendant— “Appearing further m said action as required by the court in its order overruling defendant’s motion to quash, heretofore made herein, reserves all its rights under the special appearance heretofore made, renews its objections to the jurisdiction of the court, as urged in said special appearance, and answers as follows.” The answer is to the merits. There was reply to the answer and a trial, at the conclusion of which special findings of fact and law were made by the court, including one that defendant was doing business as such corporation, at all times in the complaint mentioned, in the city and county of Spokane, State of Washington, and the one that— — 644 — “At all times mentioned in the complaint, and since, in the month of April, 1908, A. D. Mars has been, was, and now is the duly authorized and acting agent of the defendant corporation, for the purpose of soliciting insurance, accepting applications for'insurance, passing upon the said application, approving the same, accepting money therefor, * * * accepting the dues, and was at all times the general agent of said defendant corporation, and the only agent in the county of Spokane, * * * with full authority to do any and all things necessary to carry out his position as general agent.” There was no appeal from the judgment of the Washington court. It does not appear that on the trial of the pending cause the point was made that the defendant in the Washington court was not the defendant in this action. The attention of counsel has since been called to the matter. Determining the errors assigned in accordance with the theory upon which the cause was tried, the judgment of the circuit court must be affirmed. The requirement that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State does not prevent inquiry into the jurisdiction of the court in which the original judgment was rendered to pronounce the judgment. Thompson v. Whitman. 18 Wall. (U. S.) 457, and even record recitals of jurisdictional facts do not preclude oral testimony as to the existence of those facts. Knowles v. Coke Co., 19 Wall. (U. S.) 58, 61; Pennoyer v. Neff, 95 U. S. 714, 730; Cooper v. Newell, 173 U. S. 555, 566 (19 Sup. Ct. 506); Brown v. Fletcher’s Estate, 210 U. S. 82, 88 (28 Sup. Ct. 702). It is the rule in this, and probably in every jurisdiction, unless changed by statute, that appearing to object to the jurisdiction is not, upon an adverse judgment being rendered, a submission to jurisdiction, or an appearance generally. The trial court has found, upon testimony tending — 645 — to prove the fact, that the Washington court did not acquire jurisdiction of defendant, which was the question presented to it for determination. The judgment is affirmed. McAlvay, C. J., and Brooke, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.