Opinion
No. 2188
March 10, 1942
CORPORATIONS — SERVICE OF SUMMONS — APPEAL AND ERROR — PREJUDICIAL ERROR — REVERSAL — JUDICIAL NOTICE.
1. A Woming corporation, which maintained offices in Denver, and employed agents to carry on its business there, maintained a garage and shop in Denver, and purchased supplies and machinery parts in Denver for use at its mine in Wyoming, was "doing business" in Colorado within Colorado statute providing that where an action is brought against a foreign corporation doing business in Colorado summons should be served on an agent found in county in which action is brought and, if no agent can be found, by delivering copy of summons to any stockholder found in county (Laws Colo. 1927, c. 171). 2. Under statute, a judgment can be reversed only for prejudicial error affecting the substantial rights of a party, and such error must be established by the plaintiff in error or appellant (Rev. St. Wyo. 1931, § 89-2002). 3. Under statute requiring Wyoming courts to take judicial notice of the common law and statutes of other states, the Supreme Court judicially knew that Colorado statutes from which the court made verbatim excerpts were operative in Colorado (Laws Wyo. 1941, c. 78, § 1). 4. Where the same result would be reached if a case were sent back for a new trial because of an error, the error is not a "prejudicial error" affecting a party's substantial rights for which the judgment can be reversed (Rev. St. Wyo. 1931, § 89-2002).
APPEAL from the District Court, Fremont County; C.D. MURANE, Judge.
For the appellant, the cause was submitted on the brief of George F. Dobler and A.H. Maxwell of Lander.
The first cause of action is based on an alleged judgment recovered by respondent in the District Court of the City and County of Denver, Colorado, against appellant, taken by default. The only return made on the summons was an affidavit by one Ed Goldstein, in which he states he handed and left the summons with Mr. Louis Vidal, a stockholder in said corporation. He fails to state the manner of serving the summons. If no agent is found, the Colorado law authorizes the service of a copy of a summons on a stockholder, but this affidavit does not show this requirement was made. The Wyoming statute (Sec. 89-809, R.S. 1931) requires the time and manner of service to be stated on the return. In the absence of proof, the presumption is that the Colorado law is the same. 20 Am. Jur. 71; Colorado Iron-Works v. Mining Co. (Colo.) 25 P. 329. The case last cited was modified by Cockburn v. Kinsley (Colo.) 135 P. 1112. Appellant was a Wyoming corporation doing business in Wyoming only. Colorado is the only state having a law of this kind. In several states, service on a stockholder is held to be insufficient. 4 Fletcher Cyc. Corp. 4440-4441; 19 C.J.S. 995. Colorado has no power to make a stockholder of a Wyoming corporation an agent of it. Lillard v. Porter, 2 Head (Tenn.) 177; Bache v. Nashville Society, 10 Lea (Tenn.) 436; 159 Ind. 639; 23 Amer. Jur. 342. Whether appellant was doing business in Colorado at the time of suit is not shown by the pleadings and evidence. The alleged judgment was not properly pleaded. Sec. 89-1036, R.S.; Mahan v. Wyopa Co., 27 Wyo. 24; Galpin v. Page, 21 Law Ed. 964. In an action on a foreign judgment jurisdiction is not presumed when defendant is a non-resident. 34 C.J. 1140. Respondent's second cause of action is based on a purported award and order of the Industrial Commission of Colorado. According to the exemplified copy, the award was recorded in the judgment book of the District Court for the City and County of Denver, Colorado, as provided by Section 4401, Compiled Laws of Colorado 1921 as amended by Chapter 176, Laws 1931. The laws were not introduced in evidence. The Industrial Commission of Colorado is not a court of general jurisdiction. If anything, it is a tribunal of special and limited jurisdiction, which must be shown. Galpin v. Page, supra; Pelton v. Platner, 13 Ohio 217, 15 R.C.L. 359; Hinman v. Missouri (Kan.) 110 P. 120. As to the first cause of action, the manner of service was not shown. As to the second cause of action, jurisdiction to render the judgment was not shown. The judgment below should be reversed.
For the respondent, the cause was submitted on the brief of H.S. Harnsberger of Lander.
The record shows that appellant failed to qualify under the laws of Colorado and merely maintained offices in the City and County of Denver; that the employing respondent at Denver maintained a garage there and stored trucks and cars owned by officers bearing the name of the company upon them; purchased supplies in Denver, including mining machinery and groceries, and was engaged in retorting amalgam. It was therefore doing business in Colorado. Washington, Alexandria Georgetown R.R. Co. v. Brown, 21 L.Ed. 675; 23 Amer. Jur. 275; Simon v. Southern R. Co., 236 U.S. 115; Colorado Iron Works v. Sierra Grande Mining Co., 25 P. 329; Louisville N.R. Co. v. Chatters, 279 U.S. 320. Appellant was doing business in Colorado, in that the activities relied upon are the very ones with respect to which suit was brought. Weber v. Mining and Milling Co., 52 Wyo. 456; 23 Amer. Jur. 343; Kaw Boiler Works v. Frymer, 227 P. 453. The activity of the corporation which gave rise to both causes of action, gave implied consent to Colorado's laws providing for substituted service. Weber v. Standard Mining and Milling Co., supra; 11 Amer. Jur. 1171; Boiler Works v. Frymer, supra. Even if service could have been successfully attacked in original wages action because of alleged insufficient return, it was necessary to affirmatively show that a copy of summons was not in fact left with the stockholder to sustain an attack upon the service in this action. 23 Amer. Jur. 526; 23 Amer. Jur. 531; Elec. L. P. Company v. Western Electrical Supply Co., 85 A.S.R. 890; Delnoy v. Delnoy, 86 A.L.R. 1327; 31 Amer. Jur. 165. A primary object of the appellant was to retort amalgam and thus recover metal. Charter of Company, p. 128. Right of a corporation to enter in relationship of employment is not a fundamental right and State may qualify it by imposing conditions. 11 Amer. Jur. 1171, Sec. 344; Prudential Co. v. Chawk, 66 L.Ed. 1044; 27 A.L.R. 27. Colorado had right to provide for service on stockholder of foreign corporation employing truck driver and mechanic performing service within state. 14 C.J. 805; U.S. v. Sachington and Georgetown R.R. Co., 21 L.Ed. 675; Minnesota Commercial Men's Ass'n. v. Benn, 67 L.Ed. 573; Steele v. Western Union Telegraph Co., 96 A.L.R. 361; State ex rel. Kahn v. Tazwell, 266 P. 328; Showne v. J.L. Ownes Co., 133 Am. St. Rep. 376; 19 C.J.S. 997. Colorado Law providing for service upon stockholder of foreign corporation not violative of constitution. State of Washington ex rel. v. Superior Court, 89 A.L.R. 653. General statement in return is sufficient and disclosure of probative facts to support the ultimate conclusions is unnecessary. 23 Amer. Jur. 531; Electric Light Power Co. v. Western Electrical Supply Co., 85 A.S.R. 890. It is presumed that officer making return acted within the limits of his jurisdiction. 14 C.J. 811; 19 C.J.S. 1002; Baltimore R. Co. v. Brant, 31 N.E. 464. Record of proceedings need not be extended with the formality and accuracy required in records of the courts in which the evidence is sought to be introduced. 22 C.J. 851; Bowman v. St. Paul Ins. Co., 59 N.W. 943. An imperfect or insufficient return may be cured by recitals in the judgment. Ford v. Delta Land Co., 41 L.Ed. 509; Grand Lodge v. Massey, 132 S.E. 270. Appellant impliedly consented to Colorado statutes providing for industrial compensation. Session Laws of Colorado, 1919 Chap. 210, Sec. 16; 11 Amer. Jur. 1171, 31 Amer. Jur. 1039. Where judgment of sister state appears to be from court of record, jurisdiction is presumed, and burden of disproving is upon party asserting lack of it. Mahon v. Wyopa Co., 27 Wyo. 24; 31 Amer. Jur. 165; Delnoy v. Delnoy, 13 P.2d 719; Butcher v. Bank of Brownsville, 83 Am. Dec. 446; Galpin v. Page, 21 L.Ed. 859. Service by mail upon foreign corporation engaged in activity within state is permissible under statute when office maintained within state. Elk River Coal Lumber Co. v. Funk, 110 A.L.R. 1415. The defendant and appellant, Standard Mining and Milling Company, is the same company which was defendant in one of the cases herein frequently cited, to-wit: Weber v. Standard Mining and Milling Company, 53 Wyo. 456, 84 P.2d 752, and the facts in the cited case are almost identical with the facts disclosed by the evidence herein. In consequence this Court having already passed upon the effect of similar activities in Colorado by this same defendant and appellant company, there is nothing left further to be said and argument upon the points cited would seem to be unnecessary.
The plaintiff and respondent Trepanier was employed as a truck driver and mechanic by the Standard Mining and Milling Company, a Wyoming corporation, the defendant and appellant, from October 3, 1934, to February 20, 1935. For the sake of brevity he will be hereinafter usually referred to as either the "plaintiff" or by his surname. The corporation aforesaid will also usually be designated as the "defendant" or as the "Mining Company".
It appears that the Mining Company maintained an office and also a garage and shop in the City of Denver, Colorado, during this period and that the mining property it operated at that time was located at Atlantic City in the vicinity of the Town of Lander, Wyoming. Trepanier hauled supplies of various kinds by means of truck and car, these supplies consisting of groceries and small machinery parts. They were picked up in Denver, Colorado, and transported to the defendant's mine, already mentioned. On one occasion it seems he had hauled amalgam taken from the defendant's mine in Wyoming and carried it to the shop above mentioned, where it was "retorted" by one of the company officers.
The plaintiff, not being paid by the Mining Company his wages for services performed, on February 3, 1936, sued the Mining Company in the district court of the City and County of Denver, and recovered a judgment against said Mining Company therefor, which judgment was entered April 1, 1936. On November 28, 1934, he suffered an accident "arising out of and in the course of his employment aforesaid", on account of which he was compelled to stop work on February 20, 1934. However, he sustained no permanent disability and returned to work July 17, 1935. Due to this accident he presented his claim to the Industrial Commission of Colorado, which, after notice to the parties as provided by Chapter 210, Laws of Colorado 1919, and hearing held pursuant to notice December 13, 1935, at the City and County of Denver, awarded him compensation for the injury suffered and also for medical services required on account of the accident aforesaid. This award also not being paid by the Mining Company, a certified transcript thereof was filed in the Clerk's office of the District Court of the City and County of Denver, and resulted in a judgment of that court, all as provided by Chapter 176, Laws of Colorado, 1931, which amended Section 4401 of the 1921 Compiled Laws of that State as amended by Chapter 201, Laws of Colorado, 1923. So far as applicable here that law reads:
"Provided a certified copy of any award of the Commission or order of the referee ordering the payment of compensation, entered in such case may be filed with the Clerk of the District Court of any County in this State, at any time after the order of the referee awarding compensation, and the same shall be recorded by him in the judgment book of said Court and entry thereof made in the Judgment Docket, and shall thenceforth have all the effect of a judgment of the District Court, and execution may issue thereon out of said Court as in other cases."
The exemplified copy of the record of the District Court of the City and County of Denver states among other things that:
"A certified transcript of the Award and Order of the Referee of the Industrial Commission of the State of Colorado having this day been filed in this case with the Clerk of this Court, as provided in Section 4401 Compiled Laws of Colorado, 1921, and as Amended by Chapter 176, Session Laws of 1931; now therefore;
"In compliance with said provision of the statutes as amended, said certified transcript and order are hereby recorded in the Judgment Book as a judgment of this Court, wherein said Claimant Earl Trepanier, does have and recover of and from the said respondent Standard Mining Milling Company, Employer" the amount awarded Trepanier by the Industrial Commission of the State of Colorado.
The propriety of such a procedure seems to be conceded by appellant. However, see Richmond Cedar Works v. Harper, 129 Va. 481, 106 S.E. 516, 71 C.J. 1423 and cases cited.
Thereafter suit was filed by Trepanier in the district court of Fremont County, Wyoming, upon these judgments of the district court of the City and County of Denver, with the result that judgment was given against the Mining Company for the amount of said judgments, with interest and costs. This is the judgment which we are asked to review at this time.
It is contended that there was no proper service of summons in the action brought as above described for the plaintiff's unpaid wages claimed to be due from the Mining Company. It appears by the exemplified copy of the judgment roll that the service of said summons on the Mining Company was proven by the affidavit of a disinterested person, wherein it was stated that no agent of the Mining Company could be found in the City and County of Denver, where the action was instituted, and consequently service of the summons was made upon a stockholder of the defendant corporation, one Vidal, as authorized by Chapter 171, Laws of Colorado, 1927, which so far as pertinent here reads:
"Ninth — If the action be against a foreign corporation, or joint stock company or association, organized under the laws of another state or territory, and doing business within this state the summons shall be served by delivering a copy to any agent of such corporation, company or association found in the county in which the action is brought. If no such agent be found in such county, then by delivering a copy of the summons to any stockholder who may be found in such county."
Service of this kind has been held to be good by the Supreme Court of Colorado in Colorado Iron-Works v. Sierra Grand Mining Company, 15 Colo. 499, 25 P. 325. See also 18 Fletcher's Cyclopedia Law of Corporations (Permanent Edition) 530, Section. 8752. The ruling of the Colorado court would seem also by analogy to be within the reasoning announced in State ex rel. Bond Goodwin Tucker v. Superior Court, 289 U.S. 361, 77 L.Ed. 1256, 53 Sup. Ct. 624, 89 A.L.R. 653, that if a foreign corporation is not willing to depend upon receiving notice from its stockholders, who are interested in its affairs, of any process directed against it, it should have appointed a proper agent to receive service, as it was entitled to do under the statute.
That the Mining Company was doing business in Colorado is evident from the following facts gleaned from the record, viz: it was maintaining offices in the City of Denver and employing agents to carry on its business there; maintaining a garage and shop in the city last above mentioned; storing the Mining Company's cars and trucks there; purchasing supplies and machinery parts there for use at its mine aforesaid, and retorting amalgam at its shop mentioned above. One of the provisions of the corporate charter itself of the Mining Company was that that corporation was authorized to "treat, concentrate, smelt, mill or otherwise reduce or dispose of ores, metals or minerals, or any products of mineral properties".
Something is said in appellant's brief to the effect that some of the laws of the State of Colorado mentioned and quoted above were not introduced in evidence in the district court. But the Uniform Judicial Notice of Foreign Law Act (Chapter 78, Laws of Wyoming, 1941) provides in its first section that:
"Every court of this state shall take judicial notice of the common law and statutes of every state, territory and other jurisdiction of the United States."
We can only reverse a judgment for prejudicial error affecting the substantial rights of a party, something the plaintiff in error or appealing litigant must establish in this court. Section 89-2002 W.R.S. 1931; Pardee v. Kuster, 15 Wyo. 368, 381, 382, 89 P. 572, 91 P. 836; Iowa State Savings Bank v. Henry, 22 Wyo. 189, 193, 136 P. 863; Stockgrowers Bank of Wheatland v. Gray, 24 Wyo. 18, 154 P. 593; Ramsay v. Gottsche, 51 Wyo. 516, 525, 69 P.2d 535.
Under the statute cited above requiring the courts of this State to take judicial notice of foreign law, we, of course, judicially know that these laws from which we have made the foregoing verbatim excerpts are operative in the State of Colorado. It can hardly be regarded as prejudicial error affecting a party's substantial rights where if a case were sent back for a new trial the same result would be reached, as now disclosed by the record before us. Charles H. Duell, Inc. v. Metro-Goldwyn-Mayer Corporation, 128 Calif. App. 376, 18 P.2d 781, 785.
Other minor matters are suggested for our consideration by the briefs of the parties, the case not being argued orally, but sufficient has been said to indicate that we think that the judgment of the district court of Fremont County was correct and should be affirmed.
Affirmed.
KIMBALL and BLUME, JJ., concur.