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Richardson & Boynton Co. v. Utah Stove & Hdw. Co.

gent, 27 Ohio State 233; Barton v. Radclyffe, 149 Mass. 275; Dudley v. Stiles, 32 Wis. 371.

This doctrine is well illustrated in numerous cases wherein it has been held that a judgment rendered against a person after his death in an action against him begun in his lifetime cannot be impeached in a collateral proceeding on that account unless the fact of such defendant's death appear on the record. Claflin v. Dunne, 129 Ill. 241, 21 N. E. 834, 16 Am. St. 263; McCornick v. Paddock, 20 Neb. 486, 30 N. W. 602; Mitchell v. Schoonover, 16 Ore. 211.

Messrs. Whittemore & Cherrington for respondent.

To acquire jurisdiction of a foreign corporation by service on its agent so that a judgment against it will be good in another State, it must affirmatively appear in the record that such foreign corporation was "doing business" in that State. Black on Judgments, sec. 910; St. Clair v. Cox, 106 U. S. 350, L. C. P. Co. Ed., Book 27, 222; Henning v. Planters Ins. Co., 28 Fed. 440.

Judgment against a foreign corporation based on service upon the president while temporarily in the State is not enforceable in other states, the corporation not being engaged in business or having an agent located in the State where the judgment was obtained. Cook on Corporations (5 Ed.), sec. 758.

As to what constitutes "doing business" within another State, the general conclusion is that isolated transactions, commercial or otherwise, by a corporation outside of the State of its domicile do not constitute "doing business" by such corporation in such other State. "Doing business" or "carrying on business" in a State other than that where the corporation is organized means, not the transaction of isolated business acts at long intervals of time, but the carrying on from week to week, and from month to month, of the ordinary corporate business, the business for which the corporation was organized. Goodhope Co. v. Railway

Richardson & Boynton Co. v. Utah Stove & Hdw. Co.

Barb Fencing Co., 22 Fed. 635; U. S. v. American Bell Telephone Co., 29 Fed. 17; Carpenter v. Westinghouse Air Brake Co., 32 Fed. 434; St. Louis Wire Mill Co. v. Consolidated Barb Wire Co., 32 Fed. 802; Clews v. Woodstock Iron Co., 44 Fed. 31; Cooper Manufacturing Co. v. Ferguson, 113 U. S. 727; Gilchrist et al. v. Helena etc., 47 Fed. 593; People v. American Bell Telephone Co., 117 N. Y. 241; Beard v. Union & American Publishing Co., 71 Ala. 60; Ware v. Hamilton-Brown Shoe Co., 92 Ala. 145; Sullivan v. Sullivan Timber Co., 103 Ala. 371; Kilgare v. Smith, 122 Pa. St. 48; Commonwealth v. Telephone Co., 129 Pa. St. 217; Commercial Bank v. Sherman, 43 Pac. 658; Barse Live Stock Co. v. Range Valley Cattle Co., 16 Utah 59; Commonwealth v. Standard Oil Co., 101 Pa. St. 119; 6 Thompson on Corporations, sec. 7936.

STATEMENT OF FACTS.

The admitted facts in this case are, in substance, as follows: Plaintiff is now, and has been for ten years last past, a corporation, organized and existing under the laws of the State of New York, with its general office and principal place of business in the city of Chicago, State of Illinois. That defendant is now, and has been for ten years last past, a corporation organized and existing under the laws of the State of Utah, with its general office and principal place of business in Salt Lake City, Utah, and is engaged in the stove and hardware business. "That for a period of three years prior to the thirty-first day of July, 1897, the defendant had been ordering by mail, and from plaintiff's agent at Salt Lake City, Utah, goods, wares, and merchandise from the plaintiff herein, and from other parties doing business in said city of Chicago, and also purchased goods in said city of Chicago by and through its officers and agents. That P. W. Madsen is now, and has been for more than ten years last past, the duly elected, qualified and acting president and manager of the de

Richardson & Boynton Co. v. Utah Stove & Hdw. Co.

fendant corporation. That on various dates between July 31, 1897, and February 21, 1898, the defendant purchased of and from the plaintiff various articles of goods, wares, and merchandise, which the plaintiff shipped to the defendant from Chicago, Illinois, and which the defendant received at Salt Lake City, Utah." It was further agreed as a fact that said Madsen, as president and manager of defendant corporation, was in Chicago, Illinois, on August 31, 1898, for the purpose of attending to numerous business matters for and in behalf of the defendant corporation. On August 30, 1898, the plaintiff commenced an action in the circuit court of Cook county, Illinois, against the defendant, under the name of the Utah Stone & Hardware Company, for $2,000, balance alleged to be due plaintiff from defendant for goods, wares, and merchandise sold and delivered to defendant by plaintiff. On the same day summons was duly issued out of said circuit court, and on the next day, August 31, 1898, the sheriff of Cook county, Illinois, served said summons on P. W. Madsen, president and manager of defendant corporation. Madsen was called as a witness in said case, and testified that he was in Chicago, Illinois, on August 31, 1898, and that while there an officer served on him a paper which he understood to be a summons in a lawsuit against his company, the Utah Stove & Hardware Company. The defendant company appeared in the action by its attorney, and on October 20, 1898, filed the following plea: "And now comes the Utah Stove & Hardware Company, against whom the said Richardson & Boynton Company have sued out their said writ by the name of the Utah Stone & Hardware Company; says that said Utah Stove & Hardware Company is the correct and proper name by which it is known and called, and that the above name, to-wit, the Utah Stove & Hardware Company, is the only name by which the said corporation has heretofore been named and called; that P. W. Madsen was not, is not, and never was, president, manager, or other officer of the Utah Stone

Richardson & Boynton Co. v. Utah Stove & Hdw. Co.

& Hardware Company, as is by said writ supposed; and this the said Utah Stove & Hardware Company is ready to verify. Wherefore the said Utah Stove & Hardware Company prays judgment on said writ, and that the same be quashed," etc. "Jacob J. Kern, Atty. for Utah Stove & Hardware Co."

On May 2, 1900, plaintiff, by its attorney, served defendant's attorney with a written notice that on May 4, 1900, it would move the court in which the action was pending that "the summons and the sheriff's return thereon, and the declaration [complaint] in said cause, be amended by changing the letter 'n' to the letter 'v, where the same occurs in the name of the said defendant, so as to make the name of the defendant in said cause the Utah Stove & Hardware Company." On said notice appears the following indorsement: "Received a copy of the above notice, together with a copy of the affidavit thereto attached, this third day of May, A. D. 1900. Kern & Fullen, Attorneys for the Utah Stove & Hardware Company, Defendant." The affidavit referred to as being attached to the foregoing notice set forth the facts upon which the motion to amend was based, and alleged that the action was in fact against the Utah Stove & Hardware Company, and that there was no such corporation as the Utah Stone & Hardware Company. On the same day the motion and affidavit were filed, the court made and entered the following order: "On motion of plaintiff's attorney, it is ordered that all papers herein be, and the same are hereby, amended by changing the name of defendant Utah Stone & Hardware Company to Utah Stove & Hardware Company." Thereupon plaintiff moved the court to strike defendant's plea from the files. Defendant's attorneys appeared in court and resisted the motion. The motion was sustained, and the plea stricken from the files. The defendant failing to plead further in the cause, a default in due time was entered, and judgment rendered against it, and in favor of plaintiff, for the amount shown to be due.

Richardson & Boynton Co. v. Utah Stove & Hdw. Co.

The record contains the following entry: "Thereupon the defendant, having entered its exceptions herein, prays an appeal from the order heretofore entered herein striking the plea from the files to the Appellate Court in and for the First District of Illinois, which is allowed upon filing its appeal bond," etc. Plaintiff brought suit in the Third Judicial District Court of this State to recover on the judgment rendered against defendant in the Illinois court. The complaint is in the usual form, and contains the allegations necessary to a recovery in suits of this kind. The defendant answered, and, among other things, alleged "that it was and is a non-resident of the State of Illinois, and that it never was duly or regularly cited to appear, and did not appear; that the summons was directed against the Utah Stone & Hardware Company, and not against the defendant." The court, in its ninth finding of fact, found that this defendant corporation was never duly and regularly cited to appear, and did not appear, in said action, and said court never acquired jurisdiction over said defendant corporation therein, and said judgment rendered in said action against the defendant corporation was and is void." Judgment was accordingly entered in favor of defendant, dismissing the action. Plaintiff appeals.

66

MCCARTY, J., after making the foregoing statement of the case, delivered the opinion of the court.

Appellant contends that the respondent corporation voluntarily appeared in the action instituted in the Illinois court, and thereby consented to the jurisdiction over its person, and that the findings and judgment of the trial court are erroneous and not supported by the evidence. Respondent, on the other hand, insists that the appearance in the Illinois court was a special or limited appearance, and made only for the purpose of filing the plea set out in the foregoing statement of the case, and was not such as, under the law and practice of this State, which is admitted to be the same as in the

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