Keating v. Inland Steel Co.

Vinje, J. The conditions upon which this court will exercise its superintending control in questions now before us were thoroughly discussed in Petition of Pierce-Arrow Motor Car Co. 143 Wis. 282, 127 N. W. 998, and will not now be restated. The court there restricted its power, to its minimum sphere, and while there is no intent to overrule [143] the decision in that case upon the facts there present, it is the opinion of the court that jurisdiction may properly be exercised though the duty of the court below may not be so plain as to permit of but one conclusion, if a careful consideration of all the facts shows that a valid service has not been made. In cases involving the validity of the service of summons, extraordinary hardship is inherent when such service is held valid by the trial court, because the defendant has to suffer a default judgment in order, to test the question of the validity of the service (Rix v. Sprague C. M. Co. 157 Wis. 572, 147 N. W. 1001), or else apply for a writ of prohibition, there being no appeal from an order holding the service valid, and the rule of this state being that if appearance is made on the merits the question of jurisdiction is waived. Corbett v. Physicians’ C. Asso. 135 Wis. 505, 115 N. W. 365. In one of these cases judgment in the sum of $212,500 is demanded and in the other in the sum of $157,916.67, so the situation of defendant is quite serious. It has to wager those amounts on the validity of the service or else waive that question. Coming now to the merits, it will be seen from the statement of facts that the allegations of the plaintiffs as to the defendant’s possession of property in this state are upon information and belief, and that those of the defendant are upon personal knowledge. It appears that the only property that the defendant has in this state consists in some office supplies. Is this sufficient to give the court jurisdiction? Sub. (13), sec. 2637, Stats. 1919, as to service provides: “If against any other foreign corporation, to any such officer being within the state, or to any agent having charge of or conducting any business therefor, in this state, or any trustee or assignee of such corporation, or upon the secretary of state, as provided in section 1770&. But such service can be made upon a foreign corporation only either when it has [144] property within the state or the cause of action arose therein, or the cause of action exists in favor of a resident of the state, and 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.” It will thus be seen that in cases of this kind where the plaintiffs are nonresidents and the causes of action arose outside of the state, in order to make a valid service upon a foreign corporation by serving an agent it must conduct a business in this state through the agent served, and it must also have property within the state. The reasons for such provisions are obvious. Our courts should not be required to hear and determine cases arising outside of the state between nonresident parties nor should our taxpayers be subjected to the expense of such trials when plaintiffs can gain nothing substantial thereby. But whema foreign corporation is doing business in the state and has property within it that can be reached on execution, a sound interstate comity says then our courts shall be required to do the work and the taxpayers to pay the expense of the trial, for the plaintiff may be able to satisfy his judgment in whole or in part in this state. It has therefore generally been held that the property must be of some substantial nature; that the mere ownership of some office supplies is not enough to give the court jurisdiction. Strom v. Montana Cent. R. Co. 81 Minn. 346, 84 N. W. 46; Barnes v. M. & N. W. R. Co. 12 Hun, 126. We concur in such view and hold for that reason that no valid service was made upon the defendant in either case. Upon the question as to whether or not the defendant was conducting business within the state within the meaning of the statute we express no opinion. By the Court. — Let writs of prohibition issue as prayed for in the petition.