Paulus v. Hart-Parr Co.

Keewiw, J. Passing the question as to whether defendant had property in the state of Wisconsin at the time of service npon the assistant secretary of state, we proceed to examine the other ground urged by appellant to sustain the service, namely, that the cause of action arose out of business transacted in this state. Subd. 13, sec. 2637, Stats. (1898), provides, in effect, that in an action against a foreign corporation service may he made upon the secretary of state, “as provided in sec. 17705/'’ hut that such service can he had upon, the secretary of state only when the cause of action arises out of business transacted in this state, or when the defendant has property therein. Clause “f” of subd. 3, sec. 17705, Stats. (Supp. 1906), provides that a foreign corporation, in qualifying to do business in this state, “shall constitute and appoint the secretary of state its true and lawful attorney upon whom the summons, notices, pleadings or process in any action or proceeding against it may he served in respect to any liability arising put of any business, contract or transaction in this state, and stipulate that service thereof upon the secretary of state, or his assistant, shall be accepted irrevocably as a valid service upon it, and that such appointment and stipulation shall continue in force irrevocably so long as any liability of such corporation remains outstanding in this state.” The defendant fully complied with the provisions of sec. 17705 on the 25th day of January, 1906, and before the engine was delivered at Bloomer, Wisconsin. Afterwards and on April 1, 1907, the license of defendant was forfeited because of failure to file an annual report as required by the statute. In complying with sec. 17705 the [606] defendant certified that the nature of tire business to be transacted in Wisconsin was the sale of gasoline engines and machinery, and filed with the secretary of state, in compliance with sec. ÍIIOZ), the appointment of the secretary of state and his assistant and their successors in office as its attorneys, upon whom all summons, notices, pleadings, and processes, in any action or proceeding against such corporation, should be served; and by ,said appointment it agreed that such service should be of the same legal force and effect and validity as if served upon the defendant, and that such appointment should continue in force and effect as long as any liability remained outstanding against it in the state of Wisconsin. This appointment was strictly in compliance with the statute and authorized the sendee of the summons upon the assistant secretary of state, provided the cause of action upon which suit was brought arose out of a business transaction in Wisconsin. True> the order for the machinery was made and accepted in the state of Iowa, but the machinery was delivered and received' by plaintiff in Wisconsin, payment made there, test of machinery made there, contract rescinded on account of failure to comply with warranty, and property returned to the agents of defendant at Bloomer, Wisconsin, because not in compliance with warranty. Even if the contract for the purchase of the machinery was an Iowa contract, which we do not decide, still the whole transaction resulting in the cause of action clearly shows that at least a considerable part of the business out of which the cause of action arose was transacted in Wisconsin. Counsel for respondent insists that the statutes referred to respecting service upon the secretary of state or his assistant relate to “state business” and not to interstate business. But we cannot think the legislature intended to exclude a business transaction within the state because it grew out of a contract made beyond the state for the shipment of property [607] into the state, even though, such contract involved interstate business. It being established that part of the business out of 'which the cause of action arose was transacted within this state and before defendant’s license was revoked, it necessarily follows, upon well-settled principles, that the service upon the assistant secretary of state was sufficient. Hiller v. B. & M. R. R. Co. 70 N. Y. 223; Farrior v. New Eng. M. S. Co. 88 Ala. 275, 7 South. 200; State v. Bristol Sav. Bank, 108 Ala. 3, 18 South. 533. It is also insisted that, after defendant’s license to do business in Wisconsin had been revoked, service could not be made upon the assistant secretary of state under the appointment. This position we think untenable, under the statutes heretofore referred to, as well as the power which continued in force irrevocably the appointment of the secretary of state and his assistant to receive service of process as long as any liability of the defendant-remained outstanding in the state of Wisconsin. The cause of action arose before the defendant’s license was forfeited and remained an outstanding liability against the defendant when this action was commenced. Hence the fact that at the time the action was commenced the defendant had removed from the state does not affect the service. The right to serve upon the assistan t secretary of state continued so long as any liability remained outstanding in the state. Hardy v. Ketchum, 67 Fed. 282; McCord L. Co. v. Doyle, 97 Fed. 22; Boggs v. Inter-Am. M. & S. Co. 105 Md. 371, 66 Atl. 259; Groel v. United E. Co. 69 N. J. Eq. 397, 60 Atl. 822. By the Court. — The order appealed from is reversed, and the action remanded for further proceedings according to law .and this opinion.