McCane v. Barker Baking Co. , 152 La. 1075 ( 1922 )

LAND, J.

The petitioners are the members of a commercial partnership, which owns and operates a bakery -in the city of Lake Charles, La., known as the “Barker Bakery.” <

Alleging that the defendant company purchased said bakery from petitioners, the present suit is instituted to recover of defendant company the purchase price, and the expenses for operation of said bakery incurred under an alleged agreement between petitioners and defendant company.

Averring that defendant company is a foreign corporation, organized under the laws of the state of Tennessee and domiciled in said state, that it does business within the parish of Orleans and owns property therein, and that the contract sued; upon was concluded at the city of New Orleans by defendant company through its duly authorized president, W. D. Rollins, Jr., petitioners caused a writ of attachment to issue against, the property of defendant company, and service to be made on its duly appointed agent.

Thereupon defendant company, after bonding the property seized under said writ, moved to dissolve same on various grounds. As we have reached the conclusion that the first ground set forth in the motion to dissolve is well founded, we do not deem it necessary to pass upon the other grounds alleged in said motion.

Defendant company prays for the dissolution of the writ of attachment herein issued for the following reason, to wit;

“First. Because defendant is not a nonresident within the intent and meaning of article 240 of the Code ' of Practice for the reason that: 1

“(a) Though incorporated under the laws of the state of Tennessee, it has complied with all the requirements of the laws of Louisiana relative to doing business in this state and particularly with reference to the appointment of an agent upon whom service of process may be made by designating and appointing W. D. Rollins, Jr., of the city of New Orleans and registering the name of its agent in the office-of the Secretary of State and with the clerk of the civil district court of the parish of Orleans, and, having thus complied with the laws of this state, is by the express provisions of Act 267 of -1914 entitled to all the rights and privileges accorded to domestic corporations.”

(b) Defendant is in'fact, as well as in contemplation of law, a resident of the city of New Orleans. It conducts business only in the said city of New Orleans, where it operates two stores, one at 610 Oanal street'and the other at Dryades street, in said city, and has no business establishment or store anywhere else.”

As a “domestic” and a “foreign” corporation are expressly defined in section 31 of Act 267 of 1914, known as the “Corporation Act” of this state, it is not necessary for us to consult the decisions of other courts, or to compare the laws of other states with our own statute, in order to determine the issue here presented.

“A domestic corporation,” as defined in section 31 of said act, “is one formed under the laws of this state, or one formed under the laws of the United States and domiciled in this state. Every other corporation is a ‘foreign corporation,’ ”

Section 23 of Act 267- of 1914 as amended by Act 120 of 1920, reads as follows:

“Be it further enacted, etc., that any corporation formed in any state, territory, or federal district or possession of the United States, or any foreign country, shall be entitled to a certificate from the Secretary of State, authorizing it to exercise the same powers, rights and privileges as are accorded to similar domestic corporations organized under this act, upon filing in the office of the Secretary of State a certified copy of its certificate of incorporation and of its articles of incorporation; provided, that at the time of filing said certificate, the name of the agent in this state shall be given,” etc.

The remaining provisions of this section relate to corporations which may be liable for the payment of severance taxes, to the state, and are not applicable to defendant company.

On the trial of the motion to dissolve, the defendant company offered and filed in evidence the certificate of the Secretary of State certifying, “That the Barker Baking Company, a corporation organized under the laws of the state io£ Tennessee, domiciled at Memphis, Tenn., doing business in the state of Louisiana, has filed in this office a written declaration, as required by law, setting forth and containing the place or locality of its domicile, the place in the state where it is doing business, the place of its principal business establishment, ánd appointing Wm. D. Rollins, Jr., of the city of .New Orleans, state of Louisiana, as its agent upon whom service of process may be made in this state, and that the written declaration aforesaid has been recorded in book “Powers of Attorney Record No. 7.” This certificate is of date August 16, 1920, and the present suit was filed February 25, 1921.

The testimony taken on the trial of the motion to dissolve the attachment shows that the president, vice president, and. manager of defendant corporation reside in the city of New Orleans; that said company owns and operates two bakeries there; that it owns no other bakeries in Louisiana or elsewhere. It thus appears that the entire business establishment of defendant company is in the city of New Orleans, where its officers and agent for service of process reside.

As defendant company, though formed, under the laws of Tennessee, is -domiciled in this state, it is a “domestic” corporation within the definition of section 23 -of Act 267 of 1914, and is not subject to attachment as a “foreign” corporation, on the ground of nonresidence.

A natural person can have but one domicile. On the other hand, an artificial person or corporation may be created by the laws of'several states, and become a distinct corporation in each, and domiciled therein, and may be sued as such distinct corporation in the state in which it has been incorporated and in which it has a domicile. Desty, Removal of Causes, p. 66; Guinault v. Railroad Co., 41 La. Ann. 571, 6 South. 850.

The judgment appealed from is therefore affirmed, at appellant’s cost.

O’NIELL, J„ concurs in the result.