Opinion
No. 4884.
Argued December 6, 1960.
Decided January 20, 1961.
1. Where a foreign corporation in a tort action filed a motion to dismiss, alleging improper service, over three months after the time permitted for the filing of such motions (Superior Court Rule 8) and had invoked the judgment of the Court on nonjurisdictional issues including motions for discovery and the taking of depositions, its special appearance became general and the finding that it had submitted itself to the jurisdiction of the Court was warranted.
CASE, for negligence to recover damages for injuries alleged to have been sustained by the plaintiff while a passenger on defendant's railroad train on December 7, 1957, at or near the defendant's terminal in Philadelphia, Pennsylvania.
The action was commenced by a trustee writ dated April 7, 1959 naming the Boston Maine Railroad as trustee. On April 9, 1959 service of process was made upon the trustee by giving in hand to its agent in this state a copy of the writ.
Plaintiff's writ alleged that the Reading Company was a Pennsylvania corporation having a place of business in Philadelphia ". . . and doing business in the State of New Hampshire." On April 13, 1959 service was made on it by serving the writ on the Deputy Secretary of State. The writ was entered in Strafford Superior Court on May 6, 1959. A special appearance was entered in behalf of the principal defendant and the trustee on the same day.
On June 19 the plaintiff filed a motion for the appointment of a commissioner to take depositions including the trustee's disclosure, and a motion for an extension to August 31, 1959 of time to take and file such disclosure.
On August 11, 1959 plaintiff filed a motion for discovery seeking an order requiring the defendant to disclose the names of the crew on the train at the time of the accident and any reports of the accident filed by defendant's employees. A hearing was held on this motion on September 8, 1959 at which time defendant's counsel appeared and objected to the motion on the gound [ground] that it was too broad in scope but did not object to an order that the defendant corporation disclose the names of its train crew. On September 8 the Court ordered the defendant to produce the names of the crew but denied the request to produce reports of the accident.
On September 17, 1959 defendant filed a motion to dismiss the pending action because it had not been served with process in this state and had no assets in this state subject to attachment by trustee process. On September 25 the defendant complied with the order of September 8 and at the same time stated it did not waive its special appearance or motion to dismiss.
On October 20, 1959 plaintiff moved for the appointment of a commissioner to take depositions in Pennsylvania which was granted on the same day. Counsel for defendant notified the clerk of court by letter dated November 3, 1959 that they did not "regard the appointment as appropriate at this time in view of our motion for dismissal on jurisdictional grounds." On February 12, 1960 the plaintiff moved for discovery of the names of the defendant's trainmaster and the passengers on the train.
After two more extensions granted without objection the trustee's disclosure was taken and filed on March 4, 1960 in which the trustee disclosed that at the time of the service of the writ or since it had no "money, goods, chattels, rights or credits of the Reading Company in its hands or possession." On March 3, 1960 defendant also filed a motion to vacate the appointment of the commissioner to take depositions in Pennsylvania because of lack of jurisdiction over the principal defendant. On March 9, 1960 the defendant's motion to dismiss and its motion to vacate the appointment of the commissioner were denied, and the plaintiff's motion for discovery of the names of the witnesses was granted.
The defendant's exceptions were reserved and transferred by Leahy, C. J.
Upton, Sanders Upton (Mr. Robert W. Upton orally), for the plaintiff.
Burns, Bryant Hinchey, Lawrence E. Spellman and E. Paul Kelly (Mr. Bryant orally), for the defendant and the trustee.
The defendant contends that the action should be dismissed because the trustee's disclosure failed to show any assets of the principal defendant in its hands and because no proper service of process has been made upon the principal defendant.
The plaintiff takes the position that on the present record jurisdiction does not rest on the chargeability of the trustee since the defendant has waived its special appearance by failure to file a plea to the jurisdiction within twenty days after entry of the writ as required by Rule 8, Rules of the Superior Court ( 99 N.H. 608) and by submitting itself to the jurisdiction of the Court on motions and matters relating to the merits of the action. See also, Rule 21 ( 99 N.H. 610).
The defendant argues that the jurisdictional issues cannot be determined until the trustee's disclosure is filed within the time limited by Superior Court Rule No. 63 ( 99 N.H. 619) and that under a special appearance the requirement of a motion to dismiss for lack of jurisdiction is a mere technicality and of no importance.
The issue here is whether the defendant waived its special appearance by failure to file a special plea to the jurisdiction within twenty days from the return day of the writ and by participating in hearings relating to the merits of the action. We think the plaintiff must prevail on both propositions.
The defendant's motion to dismiss was filed more than 100 days too late, and under the rules of the Superior Court its appearance became general. In addition the defendant invoked the judgment of the Court on matters apart from that of jurisdiction which included motions for discovery and motions to take depositions. The defendant successfully obtained an order denying the motion for production of reports of the accident, and sought to have the order appointing the commissioner vacated and the taking of depositions enjoined. These matters involved the merits and were not confined to jurisdictional issues. It was the defendant's right if it had so chosen to have the jurisdictional issue determined without participating in other phases of the case. Maryland Casualty Co. v. Martin, 88 N.H. 346, 347. "He cannot take the chance of succeeding on any other objection to the case made against him, and at the same time reserve his exception to service or notice." Dolber v. Young, 81 N.H. 157, 159. See also, Patten v. Patten, 79 N.H. 388. The question before the Trial Court was whether in fact the defendant had submitted itself to the jurisdiction of the tribunal. Lyford v. Academy, 97 N.H. 167, 168. The denial of the defendant's motion to dismiss was warranted on the record. The exceptions to other rulings of the Trial Court disclose no error.
In arriving at this result we have not considered that the agreements of defendant's counsel for extension of the time to take and file the trustee's disclosure operated to confer jurisdiction on the Court.
Exceptions overruled.
All concurred.