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copy thereof as follows: (1) If the action be against a county, to the county clerk. (2) If against a town, to the chairman of the town or the town clerk.
(10) If against any other corporation organized under the laws of this state, to the president or other such chief officer, vice-president, secretary, cashier, treasurer, director or managing agent thereof, or in the manner provided in section 1775b in the cases therein provided for."
The American Wired Hoop Company was a corporation of the class referred to in the tenth subdivision, last quoted, of section 2637. Section 2639 of the same chapter (that is to say, chapter 120) is entitled “Service by Publication, Etc.,” and is as follows:
"Sec. 2639. Service of the summons may be made without the state or by publication upon a defendant against whom a cause of action appears to exist, or who appears to be a necessary or proper party to an action relating to real estate, on obtaining an order therefor as provided in the next following section, in either of the following cases: (1) When such defendant is a non-resident of this state or his residence is unknown, or is a foreign corporation, and the defendant has property within the state, or the cause of action arose therein, and the court has jurisdiction of the subject of the action, whether the action be founded on contract or tort. (2) When the defendant, being a resident of this state, has departed therefrom with intent to defraud his creditors or avoid the service of a summons, or keeps himself concealed therein with the like intent. (3) When the subject of the action is real or personal property in this state and the defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partially in excluding the defendant from any interest or lien therein. (4) When the action is to foreclose, redeem from or satisfy a mortgage, claim or lien upon real estate, and the defendant is a proper party thereto. (5) When the action is for a divi rce. (6) When the action is against any private corporation organized under the laws of the state and the proper officers on whom to make service do not exist or cannot be found. (7) When the subject of the acti n is real or personal property in this state and one or more of the defendants are unknown and have or claim a lien or interest, actual or contingent, therein, and the relief demanded consists wholly or partially in excluding such defendant or defendants from any lien or interest therein."
Chapter 124, Rev. St. Wis. 1898, deals with the subject of actions by aitachment. Section 2731 of the latter chapter provides in whai cases writs of attachment may be issued. It will suffice to say of this section that it permits the issuance of a writ of attachment when the plaintiff files an affidavit to the effect-First, “that the defendant has absconded or is about to abscond from this state, or is concealed therein, to the injury of his creditors, or keeps himself concealed therein with intent to avoid the service of a summons"; second, "that the defendant has assigned, conveyed, disposed of or concealed, or is about to assign, convey, dispose of or conceal his property or any part thereof, with intent to defraud his creditors"; third, that the defendant has removed or is about to remove any of his property out of this state with intent to defraud his creditors"; fourth, "that the defendant fraudulently contracted the debt or incurred the obligations respecting which the action is brought"; fifth, "that the defendant is not a resident of this state"; and, sixth, "that the defendant is a foreign corporation; or if created under the laws of this state that all proper officers thereof on whom to serve the summons do not exist, are nonresidents of the state or cannot be found.”
Section 1775b of the Wisconsin Revised Statutes, to which reference is made in subdivision 10 of section 2637 provides in substance, that every private corporation organized under the laws of Wisconsin shall, on or prior to October 1, 1898, and thereafter, within Io days after each election of officers, file with the register of deeds of the county where its articles of incorporation were recorded a list of its officers on whom service may be made, as provided in subdivision 10 of section 2637, and that in all cases when a corporation fails to file such a list service may be had upon it by delivering to such register of deeds true copies of such legal process as one desires to serve. The section also declares that such service shall have the same effect as if it had been served personally upon any one of the officers designated in subdivision 10 of section 2637. Laws Wis. 1899, c. 46, pp. 61, 62.
The question arising on the foregoing statutes is, in the first instance, one of legislative intent, the question being : Did the lawmaker, by subdivision 6, § 2639, Rev. St. 1898, intend to authorize the rendition of a general judgment against a domestic corporation on service had by publication or outside the state, or merely to empower the courts of the state to enforce any right, claim, or demand which might be preferred against property located within the state in which a domestic corporation was interested whose officers could not be found within the state? Although the question is not wholly free from doubt, we incline to the latter view, and so decide.
Since the decision in Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, it has not been the habit of the legislatures of the various states to authorize the rendition of general judgments against natural or artificial persons, on substituted service, such as service by publication or service made outside of the state; while it has been a common practice on the part of such bodies to make provision by substituted service for the due enforcement of attachment liens and all other rights and claims against property located within the state, when there are persons or corporations having, or appearing to have, an interest in the property who cannot be personally served. When resort is had to substituted service, there is always more or less danger that a judgment may be rendered without actual notice to the defendant, and, in the absence of a clear manifestation of a contrary purpose, we think it always ought to be presumed, when a judgment on substituted service is authorized, that it was the intent of the lawmaker that such a judgment should bind the absent defendant to such extent only as might be necessary to enable the courts of the state to effectually enforce rights, liens, or claims which might at any time be asserted against property within their jurisdiction.
The Wisconsin statute makes no distinction at first between natural persons and artificial persons as respects the method of service. The service upon each is required to be personal by the delivery of a copy of the summons and complaint to the defendant, such delivery, in the case of an ordinary private corporation, to be made to the president or other chief officer. Section 2637, subd. 10. That provision of the statute on which the plaintiff in error relies as justifying a different mode of service for the purpose of obtaining a general judgment is found in the section concerning service by publication or substituted service, and a glance at the various subdivisions of that section shows that in every instance where substituted service is permitted, except in subdivision 6, it is allowed for the express purpose of enabling a plaintiff to enforce some right against property, either because it has been attached or is cumbered with a lien, or because the title is clouded with some adverse claim which the plaintiff desires to have removed. The provision allowing service by publication in cases of divorce belongs to the same category, such actions being in the nature of proceedings in rem to dissolve the marital relation and determine the status of the parties. In framing section 2639, it is manifest, therefore, that the legislature had in mind a class of proceedings that are quasi in rem,--the very class of actions in which it is usual to make provision for bringing in persons by constructive service who are beyond the jurisdiction of the court, merely for the purpose of binding their interest as respects the res.
Furtherniore, it will be observed that there is almost an exact correspondence between the various subdivisions of section 2639 and the subdivisions of section 2731 relative to attachments. The cases wherein substituted service is allowed are such cases as were liable to arise under the attachment statute. It is made one of the grounds of attachment (vide section 2731, subdiv. 6) that the defendant is a corporation created under the laws of the state, and that all proper officers thereof on whom to serve summons do not exist, are nonresidents of the state or cannot be found"; from which a very strong inference arises that when, by subdivision 6 of section 2639, the legislature authorized a corporation to be brought in by publication if “the proper officers on whom to make service do not exist or cannot be found,” it intended to provide a method of service where a writ of attachment was sued out under subdivision 6 of section 2731 against the property of a corporation.
It is further noticeable that section 1775b, which provides a species of constructive service under certain conditions therein mentioned, expressly declares that such service, when resorted to, shall be as effectual as personal service upon one of the officers specified in subdivision 10 of section 2637, whereas subdivision 6 of section 2639 contains no equivalent declaration as to the effect of the service. In view of this circumstance, it may be fairly inferred that the latter species of constructive service was intended to have no greater force or effect than the service provided for in the other subdivisions of section 2639; and, as respects service had under the other subdivisions of that section, it is plain, we think, that such service was only intended to lay the foundation for a special judgment, binding the absent defendant, not generally, but only as respects property within the state that had been attached, or as respects which some other relief was sought by the plaintiff. Being of the opinion, therefore, that subdivision 6 of section 2639 was not intended to authorize the rendition of a general judgnient against a corporation whose officers could not be found within the state, it becomes unnecessary to determine the further question, which has been argued at length, whether, if such was the legislative purpose, the act would be valid. The legislature, in our judgment, did not intend to authorize the rendition of a general judgment against a defendant corporation unless it appeared and submitted itself to the jurisdiction of the court. As the Wisconsin corporation in the present instance did not thus appear, but suffered a default, the judgment rendered against it was only effective to bind the attached property, and is not good as a general judgment. This, as we understand, was the view entertained by the trial court, and, being of the same opinion, the judgment below is accordingly affirmed.
(113 Fed. 189.)
In re WELLING.
Bankrupt Act, 8 70a (30 Stat. c. 541), provides that a trustee in bank. ruptcy shall be vested with the title of the bankrupt to (subdivision 5) property which he could by any means have transferred, or which could have been sold under process against him, provided that where any bankrupt has any insurance policy which has a "cash surrender value," payable to himself, he may pay such surrender value to the trustee, and retain the policy free from creditors. A semi-tontine policy on a bankrupts life contracted to pay insured's wife $10,000 on his death, and, further, that if three annual premiums had been paid, and default was afterwards made, a proportionate paid-up policy should be issued in favor of the wife. The provisions indorsed on the policy, and made a part thereof, recited that at tbe end of the tontine period insured should have certain options, one of which was to receive in cash the p: licy's accumulated reserve, and also the surplus apportioned to it. Held, that though the policy had no “cash surrender value," within the meaning of the proviso, it had an actual value, which constituted a right of property in the bankrupt, and which could have been transferred by
him, and therefore passed to the trustee. 2. SAME-DISPOSITION OF POLICY BY TRUSTEE.
As the trustee takes the policy subject to the duty of continuing it in force by the payment of premiums until the completion of the tontine period, and subject to the contingency of the bankrupt's death before that time, in which event he would fail to realize anything,—the policy being payable to the bankrupt's wife,-either the actual value of the policy at the adjudication in bankruptcy should be determined, and the bankrupt permitted to pay to the trustee the proportion coming to him at the time stated, and to receive a conveyance from the trustee of all claims thereto, or the trustee should be directed to sell the bankrupt's interest in the policy at the date of the adjudication in bankruptcy for the benefit of his creditors.
Grosscup, Circuit Judge, dissenting in part. Appeal from the District Court of the United States for the Northern District of Illinois.
On the 13th day of April, 1900, David Welling, a citizen and resident of the state of Illinois, was by the court below adjudged a bankrupt, and on the 20th of that month tiled schedules of his property. On May 11th the Chicago Title & Trust ('ompany was appointed trustee of the bankrupt. In the schedule of assets the bankrupt did not include a certain policy of life insurance, dated March 16, 1892, issued by the Equitable Assurance Society of the United States (being numbered 336,460), for the sum of $10,000, upon the life of the bankrupt. On the 22d of October the trustee filed its petitin setting forth the facts above stated, and praying that the bankrupt be required to appear and be examined concerning the policy, and to show cause why he should not surrender the policy to the trustee according to the bankrupt act, that the surrender value thereof may become an asset for distribution to his creditors, and that Welling may not be discharged of his debts under his petition to that end theretofore filed, until such examination be had. The answer of the bankrupt denied that the policy in question was an asset of his estate; admitted that it had a cash surrender value, but that such cash surrender value is the property of Anna B. Welling, his wife; denied the right of the trustee to the possession of the policy, or to obtain its surrender value; and alleged that the assurance company was under no legal right and was not legally bound to pay to the bankrupt any sum of money as a cash surrender value of the policy, that the amount offered by the company as hereinafter stated was offered only in a spirit of accommodation, and that the company would not under any circumstances pay the surrender value without the concurrence of his wife. The matter was referred to a referee, and there was produced before him a communication from the actuary of the company under date of July 21, 1900, offering, upon return with proper release of the p licy on November 27, 1900, or within six months thereafter (if premiums be paid to that date, and the premium due on that date be not paid), to pay in cash $2.926, or a paid-up policy for $7,000; the offer not to be binding after the expiration of the six months named. The offer also required the release to be signed by Mrs. Welling. By the contract of insurance in question the assurance society, in consideration of the payment of $250 semiannually on May 27th and November 27th of each year for 20 years, promises to pay to Anna B. Welling, the wife of the bankrupt, for her sole use if living, and if not living to the surviving children of David Welling, or their guardian for their use, or, if there be ni such children surviving, then to the executors, administrators, or assigns of the bankrupt, the sum of $10,000 within 60 days after satisfactory proofs of the death of the bankrupt. The policy contains a further provision that if premiums upon the p licy for not less than three complete years of assurance shall have been duly received by the society, and the policy should thereafter become void in consequence of default in the payment of a subsequent premium, the society will issue in lieu of such policy a new paidup policy, without participation in profits, in favor of Anna B. Welling, if living, and, if not living, to the surviving children (f David Welling, or their guardian for their use, or, if there be no such children surviving, then to the executors, administrators, or assigns of David Welling, for as many twentieth parts of the original amount assured as there shall have been complete annual payments received in cash by the society at the date when default shall first be made, provided that the policy shall be surrendered, duly receipted, within six months of the date of default in payment of premiums as mentioned. The provisions indorsed upon the policy are made part thereof as fully as if they were recited at length therein. There is indorsed upon the policy the following: “(1) That the policy is issued under the semitontine plan, the particulars of which are as follows: (2) That the tontine divi. dend period for this policy shall be completed on the twenty-seventh day of November in the year nineteen hundred and six. (3) That no dividend shall be allowed or paid upon this policy unless the person whose life is hereby assured shall survive the completion of its tontine dividend period as aforesaid, and unless this policy shall be then in force. (4) That all surplus or protits derived from such policies in the semitontine plan as shall not be in force at the date of the completion of their respective tontine dividend periods shall be apportioned among such policies as shall complete their tontine dividend periods. (5) That upon the completion of the tontine divi. dend period on Nov. 27th, 1906, provided this policy shall not have been terminated previously by lapse or death, the said David Welling shall have the option either-- First, to withdraw in cash this policy's entire share of the assets (i. e., the accumulated reserve, which shall be six thousand eight