West v. Capital Trust & Savings Bank , 113 Mont. 130 ( 1942 )

ON MOTION FOR REHEARING (Filed April 6, 1942.) Plaintiff's motion for rehearing is based upon the assertion that we failed to consider proof in the record showing affirmatively a want of jurisdiction in the foreclosure action. The evidence in question is an abstract of title offered by defendants and objected to by plaintiff upon the ground that no foundation had been laid for its admission, that many entries contained in it were incompetent, irrelevant and immaterial, and that the exhibit was hearsay. The court overruled the objection to the exhibit, stating that if the court finds that it is subject to the objections it would be disregarded. The exhibit did not contain the signature of the abstract company by which it purports to have been prepared. It was unsigned.

Plaintiff contends that since the exhibit was offered by defendants, and since there are circumstances indicating that the court considered it, we are not at liberty to ignore it. He asserts that it affirmatively shows a want of jurisdiction in the foreclosure action, and that being so, the presumption of jurisdiction cannot be relied on to sustain the judgment.

In considering the motion for rehearing we may assume, without so deciding, that the defendants are bound by the evidence so offered by them and received over plaintiff's objection. We do not agree with plaintiff that it shows a want of jurisdiction in the foreclosure action. On the contrary, it shows that the court did have jurisdiction, The abstract of title contains an affidavit reciting: "C.W. Murch, being first duly sworn, on his oath deposes and says: That he is one of the attorneys for the plaintiff in the above entitled action; that said action above set forth is one for the foreclosure of a real estate mortgage made, executed and delivered by the defendants Joseph A. Stenson and Kalma Stenson, his wife to the plaintiff herein, and which said action is now pending in the above entitled court, and is one arising within the State of Montana; that affiant is personally acquainted with the facts upon which said action is based and that plaintiff has good cause of action upon the merits against each and all of the defendants named in the above entitled action; that said defendant, Montana Giant Petroleum Company, is a foreign corporation organized and existing under and by virtue of the laws of the state of Washington, and a copy of its charter has been filed in the office of the Secretary of State of the state of Montana and said corporation is authorized and qualified to do business within the state of Montana; that said defendant, Montana Giant Petroleum Company, a corporation, is a necessary and proper party to the above entitled action; that affiant is unable to locate the President or other Head, Secretary, Cashier, Managing or business agent of said corporation, agent appointed to receive service of process by said corporation, or any of the officers or directors thereof, and none of said persons, officers and directors can be found within the state of Montana upon whom service of process in the above entitled action can be made."

An affidavit substantially in the language of the statute is sufficient. (Ervin v. Milne, 17 Mont. 494, 43 P. 706.) It is to be noted that the rule is different in actions to quiet title. (Sec. 9484, Rev. Codes; Aronow v. Anderson, 110 Mont.[8] 484, 104 P.2d 2.) Plaintiff contends that the above affidavit was not in the statutory form and did not cover the matters required by section 9112, Revised Codes. In considering this contention we must read section 9112 in conjunction with section 9111. (Rothrock v. Bauman, 73 Mont. 401,236 P. 1077.) Section 9111, in prescribing how a foreign corporation may be served with summons, states: "2. If the suit is against a foreign corporation, or a non-resident joint stock company or association, doing business and having a managing or business agent, cashier, or secretary within this state, to such agent, cashier, or secretary, or to a person designated as provided in section 6652 of the civil code."

The affidavit, it will be noted, negatived the existence of any of such persons in the state as are named in subdivision 2 of section 9111, and was sufficient unless section 9112 requires something further. Before service may be made upon the Secretary of State under section 9112, there must be an affidavit negativing the existence of others in the state upon whom service could be had. The affidavit, according to section 9112, must negative the existence in the state of "the president or other head, secretary, cashier, or managing agent of such domestic corporation, or the business agent, cashier, secretary, or agent appointed to receive service of process by such corporation organized under the laws of any other state or country, or anyclerk, superintendent, general agent, cashier, principaldirector, ticket agent, station-keeper, managing agent, or otheragent, having the management, direction, or control of anyproperty of any corporation doing business in this state."

The affidavit in question here met all of the requirements of the statute except the portion in italics. The question then is: What is meant by that portion of section 9112 in italics? It is our view that if any one or more of the persons enumerated in the portion in italics were within the state of Montana at the time service was had upon the Secretary of State, service of summons could not have been had upon such person or persons unless they also came within the class of those enumerated in subdivision 2 of section 9111. In Rothrock v. Bauman, supra, it was held that the only persons upon whom service of process could be had for a domestic corporation are those enumerated in subdivision 1 of section 9111. Likewise, and for the same reason, the only persons upon whom service could be had for a foreign corporation are those named in subdivision 2 of section 9111. If the legislature desires to change the law with respect to those upon whom service of process may be had for a foreign corporation, it must amend subdivision 2 of section 9111. The italicized portion of section 9112 may be disregarded when the affidavit negatives the existence within the state of those persons enumerated in subdivision 2 of section 9111 upon whom service might be had as does the affidavit here. That part of section 9112 in italics can be accounted for only by a misconception on the part of the legislature as to who may be served with process in behalf of a foreign corporation. Certainly it does not constitute an amendment of subdivision 2 of section 9111 so as to authorize service upon those persons named in the italicized portion of the statute if they were within the state. If they could not be served if within the state, then it is pointless to show in the affidavit that there are none such within the state.

The affidavit in question here complied with the statute in negativing the existence within the state of persons named in subdivision 2 of section 9111 upon whom the legislature authorized the service of process for a foreign corporation, and hence authorized service upon the deputy Secretary of State.

The motion for rehearing is denied.

MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES ERICKSON and ANDERSON concur.