Youmans v. Minnesota Title Insurance & Trust Co.

COLT, Circuit Judge. A foreign corporation, having a usual place of business in Massachusetts, must, before transacting business in the [284] state, appoint the commissioner of corporations its attorney upon whom process can be served in any action against it, and this authority of the commissioner continues “so long as any liability remains outstanding against the company in this commonwealth.” Acts Mass. 1884, c. 330. This statute is a re-enactment in substance of the act of March 6,1878, which applied only to insurance companies. Acts Mass, 1878, c. 36. A law which requires a foreign corporation to appoint an agent upon whom process may be served, as a condition precedent to its right to transact business within the limits of a state, is valid, and binding. Wilson v. Seligman, 144 U. S. 41, 45, 12 Sup. Ct. 541; Insurance Co. v. French, 18 How. 404; Ex parte Schollenberger, 96 U. S. 369, 374; Reyer v. Association, 157 Mass. 367, 373, 32 N. E. 469; Vallee v. Dumergue, 4 Exch. 290, 303; Copin v. Adamson, L. R. 9 Exch. 345, 355, 1 Exch. Div. 17. The supreme court of Massachusetts, in construing the act of 1878, held that the right to bring suit is not confined to citizens of the commonwealth, but extends to nonresidents upon contracts made outside of the state, In Johnston v. Insurance Co., 132 Mass. 432, the contention of the defendant was “that the court will not, in the absence of express statute authority, entertain jurisdiction of an action between a nonresident plaintiff and a foreign insurance company doing business in this state, upon a contract made out of the state, and insuring property in another ,state, where no attachment has been made, and no service had except upon the insurance commissioner.” But the court, in reply to this proposition, said: “It is true the statute does not in express terms provide for the maintenance of such an action, nor does it prohibit its maintenance. The statute was not framed for that purpose; its object is simply to provide for serving upon such companies ‘all lawful processes in any action or proceeding’ against them. The words, ‘all lawful processes in any action or proceeding,’ must be held to include all actions which might lawfully be brought against a company thus having a domicile of business in this commonwealth. It is also true that the main purpose of the statute is to secure to our own citizens the benefit of our laws and tribunals in regard to contracts made with foreign insurance companies who do business in this state; and it contains particular provisions which clearly indicate this general purpose. But it is true of all our statutes, applicable to our own citizens, that their primary object is the benefit of our own citizens, and the security and protection of their rights. We have, however, always extended the privileges of our laws to nonresidents, and opened our courts to their litigation, if the defendant can be found here. Anc. Chart. 91, 192. And it was said by Chief Justice Chapman, in delivering the judgment in Roberts v. Knights, 7 Allen, 449, 452: ‘It is consonant to natural right and justice that the courts of every civilized country should be open to hear the causes of all parties who may be resident for the time being within its limits.’ ” This decision places a nonresident plaintiff upon the same footing as citizens of Massachusetts with respect to suits brought against foreign corporations under the act of 1884. The defendant availed itself of the privilege of this law in April, 1890. So far as the present question is concerned, it is immaterial when it ceased to do business in the state. The important inquiry is when it ceased to have any liability in the state; for, so long as any such liability exists, it has consented to be sued here. There [285] are now pending and undetermined in the courts of the state 13 suits against tlie defendant, to recover damages amounting to about $30,000. These suits were brought in July, 1891, and the present suit was brought December 29, 1891. The. defendant having agreed that its domicile here for the purpose of bringing suit should last so long as any liability remains outstanding in the state, and the supreme court of Massachusetts having held that a nonresident in a transitory action could avail himself of the same, right which the citizens of the state possess, I see no escape from the conclusion that the court has jurisdiction of this case, at least while the suits in the state court remain undetermined, or until it has been decided that at the time of the bringing of this suit the defendant had no existing liabilities within the state. Plea in abatement overruled.