Société Foncière Et Agricole Des États Unis v. Milliken
10 S. Ct. 823 · 135 U.S. 304 · 1890 U.S. LEXIS 2023 · 34 L. Ed. 208
May 5, 1890 · Docket 274
Headnotes
Generated summaries- Headnote 1
The court noted that Article 1223 permits service on the president, secretary, treasurer, or local agent of any incorporated company. The statute’s language “any incorporated company” includes foreign entities, and service on the agent in the county of suit is sufficient to bring the corporation before the court.
- Headnote 2
Article 152 lists non‑residence as one of twelve independent grounds for attachment. The affidavit in this case alleged the defendant “is not a resident… or is a foreign corporation…”. The court held that the affidavit identified a single factual ground—non‑residence—and thus satisfied the statutory requirement.
- Headnote 3
The opinion explained that the sole circumstance triggering Article 1373 is a judgment based on service by publication, with no appearance by the defendant. Because Milliken’s suits were served on the corporation’s Texas agent, the statute was inapplicable.
- Headnote 4
The court noted that the judgment had stood unchallenged for nearly two years, the defendant offered no excuse for the delay, and equity demands a showing of good cause before overturning a final judgment. The lack of any such showing warranted denial of the application.
- Headnote 5
The opinion affirmed that the federal court’s jurisdiction was not questioned because the state statute permits service on the local agent, thereby establishing personal jurisdiction over the foreign corporation. The same principle governs the state court’s jurisdiction.
- Headnote 6
The statute permits citation on the president, secretary, treasurer, or local agent of any incorporated company. The Court held that “any incorporated company” includes foreign corporations and that service on the Texas agent, du Bellet, was sufficient to bring the Société Foncière into court.
- Headnote 7
The Court noted that earlier legislation expressly included corporations created under the laws of other states or countries, and that Article 1223 merely restated that same inclusive intent.
- Headnote 8
Article 152 lists non‑residence as an independent ground. The Court found that the affidavit, although phrased “not a resident … or is a foreign corporation, or is acting as such,” identified only the single factual ground of non‑residence, satisfying the statute.
- Headnote 9
The Court explained that the statute’s language limits its operation to cases “rendered on service of process by publication,” and therefore could not be invoked to set aside the Milliken judgments, which were served on the corporation’s local agent.
- Headnote 10
The Court noted that the society waited nearly two years after the judgment and sales before challenging them, offering no excuse. Equity will not overturn a judgment where the delay is unexplained and there is no statutory basis for relief.
- Headnote 11
The statute authorizes service on the president, secretary, treasurer, or local agent of any incorporated company. The court held that the agent in Texas, du Bellet, was the society’s local agent and that service on him was sufficient to bring the foreign corporation into court.
- Headnote 12
Legislative history shows the 1871 act intended to cover corporations created under the laws of other states or countries. Article 1223 merely restates that intent, using the words “any incorporated company” to encompass foreign entities.
- Headnote 13
Article 152 lists non‑residence as an independent ground for attachment. The affidavit’s language may list alternatives, but it identifies only the single factual ground—non‑residence—so the attachment stands.
- Headnote 14
The court noted that the statutory bar expressly references service by publication. Because Milliken’s suits were served on the society’s agent, the statutory hook for a new trial was unavailable.
- Headnote 15
The court observed that the society waited nearly two years after execution of the judgment to challenge it, offering no excuse. Equity will not overturn a final judgment where the delay is unexcused and no statutory provision authorizes relief.
- Headnote 16
Jurisdiction is determined by the presence of an agency or representative in the county where the suit is filed. Because du Bellet was the Texas agent, the court had jurisdiction over the society, satisfying the jurisdictional prerequisite for federal diversity jurisdiction.
- Headnote 17
The statute’s language “any incorporated company” was read to include foreign corporations. The society’s Texas agent, du Bellet, was served with process, and the court held that such service was sufficient to bring the foreign corporation into court.
- Headnote 18
Article 152 lists non‑residence as a separate ground. The affidavit alleged the society “is not a resident… or is a foreign corporation, or is acting as such.” The court held that the affidavit identified only one factual ground—non‑residence—and thus satisfied the statute.
- Headnote 19
The court noted that Article 1373 was expressly limited to cases where judgment resulted from service by publication. Because the Milliken suits were served on the society’s agent, the statutory hook for a new trial was unavailable.
- Headnote 20
The society waited nearly two years after the sales and judgment before seeking relief. The court held that such unexcused delay is fatal to an equitable remedy, and no statutory basis existed to overturn the judgment.
- Headnote 21
Tex. Rev. Stat. §§ 1223 authorizes service on a corporation’s local agent, and the statute’s language was read to include foreign entities. The court affirmed that the right to sue in federal court was not contested, and service on du Bellet met the jurisdictional requirement.
- Headnote 22
The statute’s language “any incorporated company” is broad enough to include foreign corporations; serving the local agent in the county where the suit is filed is sufficient to bring the corporation within the court’s jurisdiction.
- Headnote 23
Article 152 lists non‑residence as a separate ground; the affidavit’s wording still identifies that single factual ground, so the attachment is proper despite the disjunctive language.
- Headnote 24
The court noted that no publication occurred in this case, so the statutory hook for a new trial under §1373 was unavailable.
- Headnote 25
The society waited nearly two years after the judgments and land sales before challenging them; the delay was unexcused and thus fatal to its equitable claim.
- Headnote 26
The opinion affirmed that service on the agent satisfied the jurisdictional requirement for both state and federal courts, allowing the corporation to be sued.
- Headnote 27
The Court read the phrase “any incorporated company” in Article 1223 as encompassing foreign corporations and held that serving the local agent in the county where the suit is filed is sufficient to bring the foreign corporation into court.
- Headnote 28
The affidavit alleged the defendant “is not a resident … or is a foreign corporation …,” which the Court treated as identifying only one factual ground—non‑residence—thereby satisfying the statutory requirement for attachment.
- Headnote 29
The Court explained that the statute’s language limits its operation to cases involving service by publication, and because Milliken’s judgments were obtained through service on the corporation’s agent, the provision could not be invoked.
- Headnote 30
The Court noted that the Society waited nearly two years after the judgments and sales, offered no justification for the delay, and therefore equity would not overturn the judgments or the subsequent land sales.
Opinion
delivered tbe opinion of the court.
On June 8, 1883, two judgments were rendered in the Circuit Court .of the United States for the Northern District-of Texas, in favor of Sam. -H.-Milliken and- against the Société Fonciére et Agricole des États Unis.
On August 7, 1883, September 4, 1883, and. April 1, 1884, a large number of lots ánd a body of lands, were sold in satisfaction of an execution issued on these judgments, the bulk of the property being sold in 1883. Thereafter, and on June 6,1885, an application was made by the defendant, the Société Fonciére et Agricole des Éíats Unis and Edmond Moreau to set aside said judgments and the sales made thereunder: To this application demurrers, general and special, were filed by Milliken, and sustained; and the application was dismissed. From the order or judgment of dismissal this proceeding in error has been prosecuted ; and the single inquiry is; whether the court erred in denying the application. ' It was made under article 1373, Revised Statutes of Texas, cited by counsel: “ In cases in which judgment has been rendered on service of process by publication, where the defendant has not appeared in person or by an attorney of his own selection, a new trial may be granted by the' court upon the application of the defendant, for good cause shewn; supported by affidavit, filed within two years after the rendition of such judgment; ” but obviously that article does not refer to a case of this kind. It applies only to cases in which judgment has been rendered upon service of process by publication; but here there was no publication, no service of process attempted in that way. This is the only statutory provision .referred to by counsel; and as that is not applicable, we must assume that there is no special statutory provision applicable to a case of this kind.
In the absence of a statute, can a judgment under which property has been levied upon and sold, and which has stood unchallenged for nearly two years, be set aside otherwise than through proceedings in. equity ? Certainly the ord inary remedy is in equity ; and that is one of the grounds of demurrer presented by defendant. But waiving this question, is any sufficient reason shown for setting aside the judgments ?
It appears that the plaintiff in error is a foreign corporation, organized under the laws of the Republic of France, and with its principal place of business in Paris; and organized with a special reference to business in the State of Texas, as> shown by this statement from its charter: “This society,has for its object all real estate, agricultural, ánd commercial operations of every nature whatsoever regarding- the. purchase, the acquisition in the way of grants or otherwise, and the improvement as owners or otherwise of lands in the State of Texas, America; the execution of public or private improve ments, and improvements of every kind on the lands worked by the society; the sale or transfer of all products; lands., and other real or personal property belonging to the society. The society may also consolidate with other companies and establishments, of same or different nature, situated in France or in America, acquire all rights- and obligations of these companies, or take an interest therein.” It had an agent in Texas, Henry P. du Bellet, who seems to have had and exercised all the powers of a general agent. As such agent he borrowed money from Milliken; and on July 9, July 21, and December 27, 1882, respectively, executed notes on behalf and in the name of the society for the sums borrowed, and gave deeds of trust to secure the payment thereof. These notes not being paid on the 9th of January, 1883, the first suit was brought;-and service of process made upon.du Bellet, as agent. On the 16th day of May, 1883, and after the commencement of the- first suit, he borrowed more money from Milliken, -and gave a new note in the name of the society, upon which the second suit was brought ;• and, as heretofore stated, on June 8,1883, judgments were rendered in both suits.. At the commencement of the first suit, a writ of attach: ment was sued out. and levied upon the lands above referred to.
The right of du Bellet to borrow money .in the name of the society, and to execute the trust deeds in its behalf, is not questioned.* The claim is- that he had no authority to receive "service of process on behalf of the company, and that usurious interest was included in the 'judgments; also that, at the time of■ the commencement of -the suits, the society had gone into liquidation in France, and that Moreau, the other petitioner, was the duly appointed liquidator.
That du Bellet was an agent, with varied general powers, —- in fact the■ agent of the society in Texas, — is clear. His authority to borrow money, execute notes and trust deeds in the name and for the benefit of the -society, is conceded. So .far as appears, he accepted service. of process in each suit, without question; and after'service of process in the first case, dealt with the plaintiff, and gave him the new nóte out of which the second..suit arose. Not only that; he is the party by whom the present application is evidently controlled, for he verifies the application, and in it swears that he is the' agent of the society.
Article 1223, Revised Statutes of Texas, 1879, provides': “ In suits against any incorporated company or joint-stock association, the citation may be served on the president, secretary or treasurer of such company or association, or upon the local agent, representing such company or association in the county in which suit is brought, or by leaving a copy .of the same at the principal office of the company during office hours.” The language is, “any incorporated company,”-^ language broad enough to include foreign as well as domestic corporations; and that it was intended to include foreign corporations is evident from prior legislation, for which this is a substitute. Chapter 31, Laws 1871, provided as follows: “ That hereafter any public or private, corporation, including railroad companies, created by or under the laws of this State, or any other State or country, may be sued in any court in this State having jurisdiction of the subject-matter, and in any county where the cause of action or aiiy part thereof accrued, or in any county where such corporation has an agency, or representative, or in the county in which the principal office of such corporation is situated. That service of process on any of such corporations may be had by delivering a copy of such process, with the certified copy of plaintiff’s petition, if any, to the president, secretary, treasurer, principal' officers or the agent.” Article 1223 was evidently substituted for this act, which is cited in the margin of the Revised Statutes, opposite the article. The act of 1871 expressly named corporations created under the laws of other States- or countries, as well as those created under the laws of Texas. Article 1223, reducing the number of words, expresses the the same meaning by the words “any incorporated company.” It matters not under what law the company1 is organized, or where its domicil is, service of process may be made upon the local agent representing it within the county in which'the suit is brought. Angerhoefer v. Bradstreet Co., 22 Fed. Rep. 305. In what county suit may be brought is determined'by other sections, which need not be cited here,¡as the right to .sue' in the federal court is not questioned. So, 'the court having jurisdiction of the cause of. action, servicó might be made upon the local agent representing the society. Du Beilet was unquestionably such agent, and service upon him1 was sufficient to bring the society into court.
Again, in the first sujt an attachment was issued and levied on the lands. Article 152 of the Revised Statutes states twelve separate grounds therefor. The second-is : “That the defend-, ant is not a resident of the State or is a foreign corporation, or is acting as such.” The affidavit in this case, which by such article is required as preliminary to the issue of attachment, follows thé Very language of the statute, and alleges that the defendant “ is not a resident corporation, or is a foreign corporation, or is acting as such.” The disjunctive form of thisaverment is claimed to render- it wholly invalid, and Hopkins v. Nichols, 22 Texas, 206, is cited as authority. That case held “ that an attachment will be quashed, if issued upon an affidavit •alleging in the disjunctive the o.ne or the other of two distinct causes for the attachment.” But that decision has no application. There are no distinct causes for an attachment stated in this affidavit. .The single'cause is non-residence, the cause stated in clause two, quoted above ; and while the language of the-affidavit may be open to criticism, yet its meaning is clear. It describes only one cause for attachment, to wit, non-residence, and was sufficient to sustain an attachment. There can be but little doubt, therefore, that the court had jurisdiction of the lands by attachment, and of the defendant by service upon its agent.
With regard to the question of usury. The application alleges that the usury up to the date of the judgment amounted to $ll'T9.08 ; it also alleges that the ten per cent attorney’s fee, provided in the notes, was simply a cover for usurious interest,- and the amount thereof, in fact, taken and Received by Milliken. Assuming all this to be true, as it must be upon demurrer, the fact remains, that the defendant waited two years, lacking, two days, and until more than a year after all the sales had been made, before challenging the validity of the proceedings. No excuse for this delay is shown. Obviously, the defendant ■was proceeding under the statute, which wé have seen,has ho ' application.; and independently of the statute, its delay unexcused is fatal. For, conceding the large amount of the. judgment to be just, it attacks only an inconsiderable portion. Its ■agent being served with process,, it is charged with knowledge, and some excuse for its long delay must be shown before the court would be justified in setting aside the judgment.. The same observation may be made in reference to the matter of the sales; and, in addition, it must be noticed, that no distinct act of wrong is charged. • The allegation is, “ that the said Sam. H. Milliken, by his management, prevented fair competition, and discouraged and prevented other bidders, so that he could obtain the purchase of all of said property.” No specific' act of wrong-doing appears in this averment, and no fact is stated from which the court can deduce misconduct. With reference to the allegation, “ that the society was in liquidation, and had been placed by the French court in charge of Edmond Moreau,' as liquidator,” it is enough to say, that that fact would not prevent Milliken from establishing his claim by suit in the courts of Texas against the corporation, and subjecting its property to the satisfaction thereof.
. . So, in conclusion, waiving any question of the form in which this application was presented, there was no error in denying it.
And .the judgment of the Circuit Court is
Affirmed.