State ex rel. Pennsylvania Railway Co. v. Circuit Court for Milwaukee County

Crownhart, J. Objection is taken to the proceedings of the court below, in that it took oral testimony on the motion to dismiss, the case for ladk of jurisdiction. The [653] motion was based on affidavits attempting to show that no valid service of the summons had been made. The taking of oral testimony on a motion before the circuit court has been" considered in the following cases: Amory v. Amory, 26 Wis. 152; Fowler v. Colton, 1 Pin. 331; Carr v. Commercial Bank, 18 Wis. 255; Cartright v. Belmont, 58 Wis. 370, 17 N. W. 237; Sweet v. Modern Woodmen, 169 Wis. 462, 172 N. W. 143; Will of Bilty, 171 Wis. 20, 176 N. W. 220. In the latter case the court expressed its doubt on the subject, but said: “However, we again reserve the question, preferring to withhold a definite decision thereof until it shall be necessarily involved and we have had the benefit of full argument thereon.” Sec. 113.20, Stats., provides that the official court reporter shall transcribe his notes in any proceeding had before the court upon request of a party, and sec. 4141, Stats., provides that such transcript being certified shall be received in evidence. Under these provisions a transcript of the oral evidence might have been presented to this court and considered as of the same effect as an affidavit. Such being the present law, we can see no- objection to the taking of oral testimony on a motion before the trial court. The oral testimony is apt to be much more complete, satisfactory, and evidentiary than ex parte affidavits. Of course we would not approve taking oral testimony on a motion unless the official reporter takes the testimony, the same as in the trial of the case, so that a transcript is available on review. In Petition of Pierce-Arrow Motor Car Co. 143 Wis. 282, 127 N. W. 998, this court laid down the general principles governing its exercise of the power of “general superintending control over all inferior courts” as follows: “Those principles in substance are that this jurisdiction is not to be exercised upon light occasion, but only upon [654] some grave exigency; that the writs by which it is exercised will not be used to perform the ordinary functions of an appeal or writ of error; that the duty of the court below must be plain; its refusal to proceed within the line of such duty or, on the other hand, its intent to proceed in violation of such duty must be clear; the results must be not only, prejudicial but must involve extraordinary hardship; the remedy by appeal or writ of error must be utterly inadequate ; and the application for' the exercise of the power of superintending control must be speedy and prompt.” We adhere to the rule thus laid down. Examining the instant case by this test, we are of the opinion that the writ should not issue. From the affidavit filed by the petitioners it sufficiently appears that it is at least probable that the service is sufficient. It is not such a clear case as calls forth the extraordinary powers of this court. Upon a full examination of the question, however, we come to the conclusion that the. service of the summons was good. As was said in Connecticut Mut. L. Ins. Co. v. Spratley, 172 U. S. 602, 19 Sup. Ct. 308: “A vast mass of business is now done throughout the country by corporations which are chartered by states other than those in which they are transacting part of their business, and justice requires that some fair and reasonable means should exist for. bringing such corporations within the jurisdiction of the courts of the state where the business was done, out of which the dispute arises.”' In Minneapolis T. M. Co. v. Ashauer, 142 Wis. 646, 126 N. W. 113, this court held that sec. 2637, Stats. 1898, with reference to service, “indicates a policy of broad liberality in enabling personal jurisdiction over foreign corporations where the subject matter is properly within the jurisdiction of our courts.” That section provides as follows: “7. If against a railroad corporation whose general office is or all- whose aforesaid officers shall reside or be without the state, to any station, freight, ticket or other agent thereof within the state.” [655] The findings of fact of the lower court are a part of the petition herein, and it is not claimed that they are not correctly based on the evidence. Hence we may properly consider them here together with the affidavits presented on this application. The person served in this case had the title of “District freight representative;” had an office with the rent paid by the company, and “Pennsylvania System” appearing on the door of the office, which is a general term applied to the Pennsylvania Railroad Company; “Pennsylvania System” appears in the telephone and city directories of Milwaukee, and underneath appears the name of the party served, with the title “District freight representative;” the representative solicited freight in Wisconsin and Northern Michigan for transportation over the company’s lines; he issued exchange bills of lading to shippers; signed said bills of lading as “agent,” and delivered the same to shippers; issued export bills of lading to shippers for shipments made over the company’s line; he solicited the freight shipment from the plaintiff in the case below; he made monthly reports to the company. The company also had a “Traveling representative” in Wisconsin, who solicited freight outside the city of Milwaukee. It also had a “District passenger representative,” who had an office with the agent served, and who performed similar duties with reference to passengers routed over the company’s road. The company owned the office furniture wherein its representatives looked after its business. From these facts it fairly appears that Ferguson, the party served, was an agent of the company within the meaning of that term as used in sub. (7), sec. 2637, Stats. Many cases are cited in the briefs of counsel, but it would seem that this court is compelled to decide each case of this character upon the facts before it, and that no all-embracing rule can be laid down to determine what constitutes the •doing of business by a foreign corporation such as to give [656] a'state court jurisdiction. St. Louis S. W. R. Co. v. Alexander, 227 U. S. 218, 33 Sup. Ct. 245; International H. Co. v. Kentucky, 234 U. S. 579, 582, 34 Sup. Ct. 944; Tetley, Sletten & Dahl v. Rock Falls Mfg. Co. 176 Wis. 400, 187 N. W. 204. By the Court. — The petition is denied.