EATON V. ST. LOUIS, ETC.,
& SMELTING CO.
189
allow a new necessary pa.rty defendant, of citizenship from the piaintiff, to come in by voluntary appearance now in this suit in this court. If time for the Richmond Company to appear is not allowed, the suit will be remanded to the state court, with costs.
EATON
v.
ST. LOUIS SHAKSPEAR MINING
&
SMELTING CO.
and
others. (Oircuit Court. E. D. ltfi88ou}'i.
March 28,1881.)
1.
CORPORATIONs-JURISDICTION-CITIZENSHIP.
A corporation is, for jurisdictional purposes, to be regarded .. a citizen of the state under the laws of which it is organized. 2. FOREIGN CORPORATIONS-SERvICE OF PROCESS.
Where, bV the local law, a foreign corporation is amenable to,suit in the courts of the state, service being made upon an agent within the state, the federal courts may be reganlild al courts of the state, and may take jurisdiction upon luch service 88 would be good in a state court. S. BA14E-JURI8DICTION.
A federal court has no jurisdiction over a foreign corporation, in the absence of local law conferring jurisdiction on the. state courts. though the corporation does bWline88 through an agent and ha& an office within the district where the court is held. 4. SAME-CoNSTRUCTION OF STATUTE. ,
Under the Revised Statutes of Missouri, which provide (section 3489) that" a summons shall be executed, except. as otherwise provided by law: ... ... ... fourth, where defendant is a corporation or joint-stock company, organized unller the laws of any other state or country, and having an office or doing ,business in this state, by delivering a copy of the writ and petition to any officer or agent of such corporation or company in charge'of any office or place of busine88; or, if it have no office or place of business, then to any officer or or employe in any county where Iluch service may be obtained." Held, that as the St, Louis court of appeals has decided, in a case now before the supreme court of the state, that. the' above statute does not enlarge the jurisdiction of the state courts, nor authorize suits in persona;m therein against foreign corporations in cases not coming within thelaws previously in force, but simply provideaa substitute for consttuctive notice in a proceeding against such corpora-
14-0
FEDERAL REPORTER.
tions; that the ruling of said court of appeals should be followed by United States courts, unless it is overruled by the supreme court of Missouri.
In Equity. On motion to dismiss for want of jurisdiction. The respondent, the St. Louis Shakspear Mining & Smelting Company, is a corporation organized under the laws of Illinois, and by its charter its principal office is declared to be in the city of St. LOUis, in the county of St. Clair, and State of Illinois. The bill alleges that all the stockholders and officers of the corporation were, at the time of the organization of the company, and still are, citizens of Missouri and residents of the cityofSt. Louis. The complainant. claims to be a of. this corporation in the sum of $3,'180, and brings this suit to the several stockholders to contribute ratably to the'payment and satisfaction thereof. The bill contains the follolVing averment: "Complainant further states that this corporation respondent has doing business, having the ?ebt aforesaid dUl) .and that It has no office or agent in l'he'olty 'of East St. Lotus, 'ndt lD the state Q/. ,lll]nois,nor is therl}.any property :anywhere belonging !to 'said' corporation out ofwhich saiq ,debt', pqmy; Pl!-I,'t oUt, can be made." The marshal's return t? seI;v,icp?fIlUmmOns on tl1-e cQrpol,'ation is ,. . .' '. ", . ' , . as follows: '. " this by a copy thereof" with thlireto 'attached, t<)"L6renz'd Brown. withinnmoo'Sti. LouisShaltspelttlMiningand Smelting Compluly, ali the office {)f {)f said company,&t 603 ;Washingtonaveaue,in the .city {)f St. Louis, in said district, on the fourteenth day of February, 1881, he being in charge of said office, and I being unable to find the president or -other chief officer of said company in said district." " i " "lTM;il1otioll is upon .the' ground that it 'appears from the rc4!0ttdtbat the corporation respllndent lSneither a citizl!11 of'nor found in the dig trlo1;"Within the lneanirig act of congress delinhlg'the juris.diction of the circuit cOurt'of the United States, approved March 3, 1875.
Wickham
pyet
cf Ellis,' for
x Robertson, for motion. i
C.J. The respondent corporation was organized, under the law of Illinois, to carryon the bUSiness of mining, ,and is for jurisdictional prirposes to be regarded ItS a citizen >()fthat state. The motion to dismiss being beforeuB for consideration, the important question is whether such a foreign ,corporation can be sued in this court upon the ground that it has an office in the city of St. Louis for the transaction of its business, and upon service made at such office upon its secretary. We construe the return as showing that service was made upon. the secretary at the office of the company in
EATON V. ST. LOUIS, ETC., MINING & SMELTING CO.
141
the city of St. Louis. The general question of the right of a. creditor of a foreign corporation to sue such corporation ina federal court of any district in which it may have an office, and an officer or agent· for the transaction of the general business, has been considered in the following, among other, cases: Railway Co. v. Harris, 12 Wall. 65; Ex parte Schol· lenberger, 96, U. S. 369; Hayden y. Androscoggin 'Mills, 1 FED. REP. 93; Runkle v. Ins. Co. 2 FED. REP. 9; BrowneU v. R. Co. 3 FED. REP. 761; Williams v. Transp. Co. 14 O.G. 523; iWilson Packing Co. vI Hunter 7 Reporter, (Boston,} 455. Railway Co. v. Harris was a suit, brought 'in the sU}>feme court of the District of Columbia against the Baltimore & Ohio Railroad Company, a Maryland corporation: It was 'held that the corporation was found within ,the District' bf' Cotutn.l bia. The actof'congress,npordhe construction of whiehihe to build 'a qulistiolC was 'decided, authb'rlzed'the' branch road into the District of CciltiriiJiia;'and provided as follows:"'·':' '13aJtimore &; bhio Railway' Company' are 'authoN ized to exercise the same pow6rS,)'ighttl/ ..lid ,privilliges, and'shal:l,be sub. lat· ject,to,t:lle s6J;1le ,witlj.in may e:x:erpjae to under or by virtue 0'1' the said act of incorporatiori; 1U the' extllhsi6Ji and 'c6nstntction of any i-anr6ad'withiJi the' state 'of 7Ma-rylalldl be entitJedto the same rights, benefits, ,and immunities in thiMIB6 Qf. aaid rQlld, and ,in regar!! theretQ, Wl provided charter, except the right to construct any late'rld road' or rOllds'in said district 'from saidlateraf road, " ' ,, ' " " , !I .
It this while there but one eorporation in Maryland and the District of Columbia, there was ,3. unity of ownership throughout,and that. the corporation might be sued in the District of Columbia for injuries done on its road outside of said district. In Ex parte Schollenberger the facts wereThat a foreign corporation was business in Pennsylvania under a statute which provided that the company should file a written stipulation agreeing that process issued in any suit brought in any court of the commonwealth having jurisdiction of the SUbject-matter, and served upon an agent specified by the company to receive service of process for it, should have the same effect as if personally served upon the company within the state.
142
REPORTER.
was held in this case that a corporation may consent to be in a foreign state in consideration of its being permitted to carry its business there, and accordingly it was held that such corporation, doing business in Pennsylvania under said statute, was found there within the meaning of the act of congress. The decision is put directly upon the ground that the law of the state required foreign corporations to consent to be "found" there as a condition precedent to their being permitted to transact business in the state, and that the company in that case had so consented. These are the latest adj,udications of the supreme court upon the subject. .In Hayden v. Androscoggin Mills, in the circuit court for the district of Massachusetts, Lowell, C. J., went further, and held that, independently of any local statute, a coris of right suable in a country in which it transacts an important part of its business. Runkle v. In,. 00. is in all respects like the case of Ex parte Schollenberger, and was decided upon the authority of that case, and u:Qder a similar statute. In WilBon Packing 00. 'I. Hunter it was held by Drummoo.:l, C. J.,that a Missouri corporation, owning and possessing a. slaughter-.houBe and stock-yard in East St. Louis, Illinois, where beef· to be canned by said company was slaughtered and dressed for and in. the name of the company, could be Bued in the circuit court· of the United States for the southern district of Illinois. The liability of such a corporation to be sued in Illinois it was held· might be inferred from its right to do business in that state, although there was no express provision of law authodzing service upon it within that state. In Williams v. Tmnsportation 00., in the United States circuit court for the eastern district of New Jersey, it was held that a foreign corporation, without charter from a state, but transacting business therein and amenable to process of its courts in accordance with l®allaw, isfound within the state in the sense of the judiciary acts, and may be sued in the United States circuit courts. It will be seen by an examination of t,hese and other cases that, according to the great
EATON V. ST. LOUIS) ETC.) MINING .. SMELTING 00.
His
weight of authority, the most that can be claimed in favor of the jurisdiction of federa! courts is that where) by the local law) the foreign corporation is amenable to suit in the courts of the state, service being mnde upon an agent within the state, the federal courts may be regarded as courts of the state, and may take jurisdiction upon such service as would be good in a state court. At all events, 'Y'e are unwilling to go further than this. We do not agree to the proposition that the mere fact that a foreign corporation does business within the district brings it within our jurisdiction, in the absence of a local law which authorizes service of the process of the state court upon it. .The state and federal courts, upon & question such as this, should DP governed by the same mIe, to the end that citizens litigating thea rights in the two forums shall stand upon an equality. It becomes necessary, therefore, to consider the legislation of this state upon the subject.· There is no statute in Missouri requiring foreign corporations in geueral, transacting business in' this state, to subject themselves to the jurisdic. tion of its courts. The Revised Sta.tutes of 1855 contained a. provision'as follows: "Any corporation, incorporated by allY other state or country, and have ing property in this state, shall' be liable to be sued, and the property of the same shall be subject to in the same manner, as individual residents of other states and countries, having property, are now liable to be sued and their property subject to attachment." Rev. St. 1855, c. 34, i 22.
By act approved March 14, 1859, it was provided.. that all railroad companies own and operate roads terminating opposite to the city of St. Louis, whose chief office or place of bUsiness is in St., Louis, shall be sued in the same manner, and·no other, that road companies cbartered by the laws of tbis state are now sued." Acts 1859, p. 67.
These provisions were embodied in the Revision of 1865; 9., 62) § 17. By an act passed in 1877 it was provided as fol. ' lows: .. All railroad corporations that own or operate roads terminating opposite to any point in this state, and which have offices or places of m this state, shall be sued in the same manner as railroad corporaUons chartered by this state." Laws 1877. p. 869.
144
Similar statutes have from time to time been enacted w;tl, reference to foreign insurance companies, but, in general terma, applying to all foreign corporations. Another statute, alid the one chiefly relied on by complainant, provides as follows: "A summons shall be executed, except as otherwise provided by law: fourth, where defendant is a corporation or joint-stock company, organized under the laws of any other state or country, and having l\n office or doing business in this state, by delivering a copy of the writ and petition to any officer or agent of such corporation or company in charge of any office or place of business j or, if it have no office or place of business, then to any officer, agent, or employe, in any county where sud service may be obtained."
... ... *
.It has been held by the supreme court of Missouri that under the above-mentioned act of March 14, 1859, foreign railroad companies were not liable to be sued in the courts of this state without an attachment of property, unless in the case of a (Jompany own.ing arailroltd terminating opposite the city of St. Louis, an.d having its chief office for the transaction of its business in that city. Robb v. Railroad Co. 47 Mo. 540, and cases cited. This was held upon the principle that a statute specifying what particular foreign corporations may be sued in this state necessarily excludes suits against such as are not included within the terms of the law The latter act enlarges the right of suit by extending it to railroad companies having lines of road terminating opposite to any point in thi3 state, and which have an office or place of business in this state, whether it be its chief office or not; but it still applies only to railroad corporations. It is thus seen that the action in the present case could . not be maintained in a state court under the decisions of the supreme court of Missouri, in the absence of the last statute above quoted. The question, then, is, does that statute enlarge the jurisdiction of the courts of the state, and authorize Buits in per80nam therein against foreign corporations, in cases not coming within the laws previously in force? It will be observed that it is a statute regulating the service- of summons upon a foreign corporation. The natural construction of such a statute is that it is intended to regulate service of process in such cases as are authorized by law to be
EATON V. ST. LOUIS, ETC., MINING & BOLTING CO.
145
brought-in such cases as come within the jurisdiction of the court j not that it is intended to confer jurisdiction in cases not covered by previous legislation. It is strongly urged by counsel that the act was intended by the legislature to go further, and to authorize suits to be brought against all foreign corporations having offices and agents in this state, and it is said that great inconvenience will result from any other construction. We recognize the fact that it is important that laws should be enacted authorizing suits against cor· porations wherever they are found doing business; but it must also be conceded that it is the duty of the legislature, anduot that of the courts, to make such laws. If the statute of Missouri, as it now stands and being fairly construed, does not authorize such suits to be brought in the courts of the state, we are not disposed to assert the jurisdiction of this court. Although the supreme court of this state has not passed upon the question of the true construction of the act last men. tioned,it has received the careful consideration of the St.Louis court of appeals, in the rl:lcent case of McNichol v. U. S. Mer· cantile Reporting Agency, where, in a well-reasoned opinion, it is held that the statute does not authorize suits against aU foreign corporations doing business in this state. It is held that the several acts must be construed together; that they are not necessarily in conflict, and that it is the duty of the courts to give full effect to each; and it is said: " clause in question is perfectly consistent in terms with section 742. The latter section prescribes in exact terms what right of action shall exi,st against foreign corporations. The section under consideration goes no further than to prescribe the manner in which process shall be served on such corporations. It says nothing about the effect of such service; that is left subject to the operation of other provisions of the Revised Statutes, and under those provisions it can have no more operation than as a substitute for constructive notice in a proceeding against a nonresident individual."
·
For the present; and until the question shall be decided by the supreme court of Missouri, we shall adopt and follow this ruling. As, however, the case firsf cited is now, as we un. derstand, pending on appeal in the supreme court of the state, the complainant ma·y, if he see fit, have this case continued v.7,no.2-10
146
.',1 .;
until that couitshall give an authoritative construction to the statute, which will be adopted by us as the rule of decision here. If complainant does not adopt this suggestion the motion to dismiss will be sustained.
ORANGE NAT. BANK
V.
TRAVER' and Wife.
(CircUit (Jourt, D. Oregon. May 16, 1881.) 1. FOREIGN CORPORATION. The Oregon act, (Or. Laws, 617,) prohibiting a foreign corporation from" transacting business in this state" untHlt appoints a resi· dent agent therein, was not intended to prevent such corporation from maintaining a suit in the state courts, and it is not in the power of the state to prevent it from maintaining a suit in this' court. 2. SAME.
A corporation, formed under "the national banking act," is either a citizen of the United States only, or a citizen ,of the state where it is organized and located. If the former, it is not .a foreign corporation in this state; if the latter, it is a foreign corporation, but for that very reason may sue in the national courts herein, irrespective of the state legislation. 3. SEPARATE PROPERTY OF MARRIED WOMEN.
A debt contracted by a married woman is, in equity, a charge upon her separate estate; but, if contracted as surety for the benefit of another, the authorities are in conflict whether it creates such a charge, unless her intent to have it produce such effect is expressed in the contract; but, in either case, a note given by the wife for the debt of lier husband, with a stipulation that the note is taken by payee "on the credit" of her separate estate, is sufficient evidence of her intention to charge her with thepayuient of such debt. .
In Equity. Suit to enforce a charge upon Ii wife's separateestate. Demurrer to answer. David Goodsell, for plaintiff. Ge01'ge H. Durham, for defendant. :DEADY, D. J. On December 21, 1877, the defendants, George W. Traver and Emma S., his wife, made their two joint and several promissory notes at Portland for the sum of $600 each, payable, with interest at the rate of' 3t Pl:l! .centur:l per annum, to Johnson, Clark &, Co., or order, at the