MINERAL POINT RAILROAD COMPANY v. KEEP, 22 Ill. 9 (1859)

**6 Several objections are made by the appellants to the proceedings in this cause, some of which, deemed the most important, we will notice.

The first is, that there was no service of process in the original suit, and that the court erred in requiring the defendants below, to make any further appearance in the cause than to object to the service.

The service was as follows: “Executed the within writ by delivering a true copy of the same to J. R. Booth, agent, and J. W. Dexter, conductor of said Mineral Point Railroad Co., this 2nd February, 1857, the president of said company not residing in this State.”

It is provided by an act amendatory of chapter 83, R. S. 1845, passed in 1853, (Scates’ Comp. 243): “In all cases where suit has been, or may hereafter be brought against any incorporated company, process shall be served upon the president of such company, if he reside in the county in which suit is brought, and if such president be absent from the county, or does not reside in the county, then the summons shall be served by the proper officer by leaving a copy thereof with any clerk, cashier, secretary, engineer, conductor, or any agent of such company found in the county, at least five days before the trial, if suit be brought before a justice of the peace, and at least ten days, when suit is brought in the Circuit Court.”

This act does not seem to be confined to domestic corporations, in its terms, nor do we think it should be, when the purpose of the act is considered. It seems to us, it was designed for just such cases as the present, where railroad companies, having their offices and officers in foreign States, do their business, have their agents and their property in this State. It is a convenient way provided, to get service upon them, so as to subject their property to their contracts, and it is a proper consequence of the provisions of this act that they should be deemed found wherever one of their officers or agents, such as specified in the act, may happen to be. And this we understand in every day’s practice, not only with the Illinois Central, but with all other railroads in the State. The practice under a law, is sometimes good evidence of what the law is, and really means.

*17 It is urged in addition, that the return of the officer is not, and ought not to be, conclusive of the fact of agency, and that the affidavits to show the true character and relative position of the supposed agent and conductor, Booth and Dexter, should have been admitted–that the return can only be conclusive of the fact and the time of the delivery of the copy of the summons to these supposed agents, but not to their character or supposed relation to or connection with the company.

There is great force in this objection, and if the appellant had pleaded in abatement of the writ and not to the merits of the action, it might have availed.

The object of process being to compel the appearance of a party, if he does appear on void process or without service of process, and pleads to the merits, he can never urge the want of proper process, or want of service or improper service, as grounds for the reversal of a regular judgment rendered against him, the court having jurisdiction of the subject matter. He submits his person to the jurisdiction by his plea. The court did not require the appellants to plead to issue–it was their own voluntary act.

**7 We are not inclined to think the return of the officer as to the fact of agency, when a corporation is sued, should be conclusive. Great injustice and ruin to incorporated companies might be the consequence, had the officer the undisputed power to select any person he might choose, as the agent of a company sued, and serve the process upon him. That he was the agent must be held to be a fact open to the country. An officer’s return is not conclusive of all the facts stated in it, as where he returns upon a fi. fa., “money made and paid to the plaintiff,” the payment is a fact which may be contested. So in this case, the fact that J. R. Booth was the agent and Dexter the conductor, is not conclusively established by the return; it can be contested. Our statute authorizing service of process on an agent or conductor, is an innovation upon the ancient practice, and no greater force and effect should be given to it than is absolutely necessary. When a party sues an incorporated company whose president and whose place of doing business is out of the county where suit is brought, and causes his process to be served on one whom he chooses to consider the agent of the company, it is no hardship to require him to prove such person was the agent. *18 We think, therefore, that the fact of agency could have been put in issue by plea in abatement of the writ, the defendants appearing for that purpose only. By such practice, no injustice can be done. If the issue is found against the company, and the fact of agency established, leave will always be given to plead to the merits.

The motion made by appellants, was not in the nature of such a plea, for no issue could be made up. A most important fact was to be investigated and decided, and it could not be well tried upon affidavits, and without an issue formed.

They have pleaded to the merits, and that cures all antecedent irregularities of process–defective service, or an entire want of service.

As ancillary to this action commenced by original summons, the plaintiff below, on an affidavit made before a notary public of Wisconsin, attested by his notarial seal, obtained an attachment which was levied on one locomotive, and several cars, as the property of the plaintiffs in error, and a copy of the writ and levy “left with Mr. Booth, agent of said road.” No notice by publication or otherwise was given, other than the service of the original summons in the mode above stated.

A motion was made to quash the affidavit on the ground that it was not made before any officer authorized by the laws of this State to administer oaths. The motion was overruled, and we think correctly, for the notary states in his certificate, that he is authorized by the laws of Wisconsin to administer oaths, and our statute, section 32, chapter 9, R. S. 1845 (Scates’ Comp. 235), provides that the affidavit may be sworn to before any officer authorized by the laws of this State to administer oaths, or by any officer of any state, territory or district of the United States, the fact that the person administering such oath is duly authorized, to be proved in the same manner as in the acknowledgment and authentication of deeds. Now a deed executed in a foreign State, and acknowledged before a notary public and attested by his notarial seal, is a sufficient authentication of the acknowledgment, without any other evidence. So would proof before him by the subscribing witness be sufficeint. It is sufficient, that the notary has power by the law of his domicil, to take affidavits, and such affidavits can be used in the courts of this State.

**8 *19 A plea in abatement was then filed to the affidavit and writ of attachment, which was demurred to and the demurrer properly sustained, because the plea did not state, that “the large amount of personal property which the company had in Jo Daviess county, was sufficient to pay the plaintiff’s debt.”

These proceedings were prior to the attack upon the sheriff’s return by motion to set it aside. After this motion was overruled, plaintiff in error filed a plea to the jurisdiction of the court, setting out that the causes of action accrued to the plaintiff below in Wisconsin and not elsewhere, and that both parties are non-residents of this State, they residing in Wisconsin, and that plaintiffs in error are a corporation created and existing under the laws of Wisconsin and keeps its office and place of business there, having none in this State, and that the contract and causes of action sued for, were created and to be performed in Wisconsin, where both parties then did and still do reside.

To this plea the plaintiff below, by leave of the court filed two replications. First, averring that defendants below are a body corporate in this State and existing, doing business, and having an office in this State under the act of February 15, 1855, and second, that under said act, the defendants below, built and are now operating a railroad from the dividing line of the States of Wisconsin and Illinois to the depot of the Illinois Central Railroad at Warren in Jo Daviess county, and was, at the time of the commencement of this suit, transporting persons and property upon it.

To the first of these replications there was a demurrer, which was sustained, and amendment made and a rejoinder put in. The issue thus formed was tried and found for the plaintiff below, and judgment of respondeat ouster. Whereupon the defendants filed the plea of the general issue and seven special pleas.

From the views we have already presented, it may be inferred that the question of jurisdiction was properly determined against the plaintiffs in error. There can be no question that they and their property were amenable to the attachment process in aid, as this was, of the suit at law commenced by summons served upon their agent. Though incorporated companies are not expressly named in the attachment act, by force of section 9, chapter 90, (Scates’ Comp. 722), the word “person” shall be deemed to extend *20 to and include bodies politic and corporate, as well as individuals. The word “person” therefore in the first section of the attachment law (Scates’ Comp. 228) includes bodies politic and corporate as well foreign as domestic.

If it be a foreign corporation, having property within the jurisdiction of this State, it must be regarded as a non-resident debtor and amenable to this process. If it be a domestic corporation, and it is alleged that it has property within this State and is about to remove it without this jurisdiction to the injury of the creditor, a case is made for the issuing of the writ of attachment.

**9 We can perceive no hardship or injury likely to result from so holding. Corporations have vast powers and privileges, sufficient it is supposed, to enable them to carry out the objects for which they are created. It would be neither just nor wise, to bestow upon them the additional immunity of exemption from the observance of their contracts, or to deny to the people, the usual facilities for collecting their debts against them. Nothing in the issues made up on the plea to the jurisdiction is shown, to deprive the court below of jurisdiction.

The judgment on this plea of respondeat ouster may be considered, as a favor extended by the court to the plaintiffs in error, for ordinarily, the judgment would have been quod recuperet, an issue of fact having been joined upon the replication and found for the plaintiff. The same jury that tried this issue might have assessed the damages. 1 Ch. Pl. 464. The facts alleged in the plea to the jurisdiction and the issue upon it, were properly tried by the jury. But it may be observed, this plea to the jurisdiction was not properly pleaded, and on motion would have been stricken from the file. It was pleaded by attorney. The rule is it must be pleaded in person, and not by attorney, because the latter would admit the jurisdiction of the court. 1 Ch. Pl. 444.

What we have said disposes of the eleven errors first assigned.

As to the twelfth error, it was clearly a matter of discretion in the court below to permit the defendants to file anew items of set-off, which they had once filed and withdrawn. A plea of set-off is in the nature of a cross action, and items of set-off may be regarded as counts in a declaration, and it would be unreasonable to permit a party to withdraw, at one term some of his causes of *21 action, and reinstate them at another, when the opposite party might not be prepared to meet them. It was, however, in the discretion of the court to allow it, or refuse, and its exercise cannot be called in question.

As to the objection that a witness was permitted to read from written minutes what a former witness, then deceased, had testified, the rule is, and we believe has never been departed from, that a witness may refresh his recollection by referring to his minutes or memoranda made by him, but cannot speak from them, or give them in evidenee to the jury–he must speak from his own recollection of the substance of the testimony. Iglehart v. Jernegan, 16 Ill. R. 521. The rule in England is, that the very words of the deceased witness must be given.

In this case, the record states that the plaintiff “offered what was testified by Charles Temple on a former trial between the same parties in the same case, the said Temple having been then produced and sworn as a witness on the part of the plaintiff, since which time he had died. The plaintiff offered to prove his testimony by M. H. Carpenter, one of the plaintiff’s counsel on the former trial, to which the defendant objected. The court overruled the objection and Carpenter was sworn. Now it will be seen here, that the objection was general, to his being sworn at all, and there was no exception alleged or taken to the decision of the court permitting him to testify. The witness being sworn, testified that he was present at the former trial and heard Temple give in his testimony–that he took it down at the time, acting as counsel for the plaintiff, (minutes here produced,) and that he believed the minutes so taken by him were correct–that he could not state his testimony minutely, from his recollection, but must rely upon his minutes taken at the time and which he believed were correct, and then read from the minutes of the testimony of the deceased witness the following evidence, to wit:”

**10 No objection was made to this mode of giving the testimony of the deceased witness to the jury, nor does it appear from the record, that the witness had not a recollection of the testimony when it was refreshed by reading the minutes.

This court has laid down no rule as to the degree of connection required between notes and memory, and we are at liberty to adopt *22such an one as may be reasonable and just. Courts generally have said, that the judge’s notes of the testimony, are not per se, evidence. to make them of any use, he must resort to them merely as a memorandum to refresh his memory, the same as any other witness. Here the minutes of the evidence taken by the counsel were not offered as evidence per se–he was sworn to their correctness and read from them without objection. What better evidence of the testimony of a deceased witness could there be, than correct notes of it taken at the time? It fulfills one of the most important requirements of the law, that the best evidence shall be produced in the power of the party to produce. If not truly taken and reported, it is open to attack and exposure from the other side, whose counsel may also have taken full notes, or the judge who tried the cause, may be sworn, and his notes used for such purpose, or any one or more of the jurors or bystanders who heard the case, may be examined as to their fidelity and correctness. It seems to us, that such minutes sworn to be correct are far better and more satisfactory as evidence, than the imperfect and fleeting recollection of any man could possibly be, and we do not feel the force of a reason which shall require us to reject a higher for an inferior grade of testimony. It must be recollected, that the witness detailing the testimony of the deceased, is not called to testify to any fact in the case, but only to the fact as to what the deceased witness swore, and if he swears that he made full notes of his testimony at the time, and that they are correct, we see no reason why he should not read them to the jury, as the best evidence of the fact to which he is called to depose.

In the case of the Mayor of Doncaster v. Day, 3 Taunton 261, Mansfield, C.J., said, what the former witness swore may be given in evidence, either from the judge’s notes, or from notes that have been taken by any other person, who will swear to their accuracy–or the former evidence may be proved by any person who will swear, from his memory, to its having been given.

In Miles v. O’Hara, 4 Binney, 108, it was held that a copy of the judge’s notes of the testimony of a deceased witness were not evidence, though certified by him to be correct, but they would be, if with his oath.

In Cornell et al. v. Green, Adm’r, 10 Serg. and Rawle, 14, after *23 the plaintiff had opened his rebutting evidence, he offered Mr. Fisher who was of counsel in the cause, to prove what had been sworn on a former trial by a witness since deceased. On being examined as to the state of his recollection, he testified that from having been consulted before the suit was instituted, and having directed to be done what the witness in the former trial swore was done, as well from frequently having recurred to his notes of the witness’ testimony, as from conversations with him before the trial came on, he had a perfect recollection of what the witness swore–that he would not, however, pretend to say without a previous knowledge of all these facts, what the witness did or did not swear–that he is in the habit of taking down the very words of a witness, and not the substance of his testimony; and that to the best of his knowledge his notes contain every word said by the witness on the occasion; and added, that conversant as he was with the cause, without frequently recurring to his notes, he would not undertake to state every word said by the witness, but that the material part of what he had said, he could state without recurring to his notes. The court held he was properly admitted to testify, taking strong grounds against the unreasonableness of the old English rule, requiring the very words to be given. In the course of the opinion, Gibson, J., says: “It seems, however, singular, that instead of trusting to Mr. Fisher’s recollection, the plaintiff did not offer his notes in evidence, against which, when properly authenticated, there could be no sort of objection.”

**11 To the same effect is Chess v. Chess, 17 Serg. and Rawle, 409. In this case, the court say, if the notes on one side are not fully trusted, what more obvious correction than to have the notes on the other side produced and sworn to, if they can be sworn to, or the notes of the judge, or recourse had to the memory of the jurors or other persons present, if it shall be insisted that memory is safer than writing. In Ballinger v. Barnes, 3 Devereux (N. C.) 460, the course here recommended was pursued, the result of examinations on both sides going to the jury. This practice was approved by the court.

We think, written notes made by the counsel for one of the parties in the cause, and sworn to be correct, are more reliable than testimony resting in memory merely, tinged, as those notes may be, *24 by the prejudices of the counsel taking them, being open to correction by the judge’s notes, or those of others.

As to the objection that the letter of the plaintiff below to the president of the company, was permitted to go in evidence, it will be seen by the second instruction asked by the defendants below, and given by the court, the jury were specially instructed to disregard all that part of it, which alleged the non-payment of the monthly estimates, as the reason for abandoning the contract. For all other purposes, the letter was admissible as notice.

The fourth instruction given on behalf of plaintiff below, states the law accurately on the point involved in it. The advances by the company to Holcomb, one of the sub-contractors under the plaintiff, could only be justified on the ground that the plaintiff was indebted to Holcomb at the time of making the advances, equal in amount to the money advanced. This limit of the authority to the company to make the advances, might well be imposed by the plaintiff, and it was for the jury to say if it was imposed.

As to the rights of the parties who interpleaded, it is sufficient to say, they have not brought them before this court–they are not parties, in any sense, to this writ of error.

The finding of the jury was after a full hearing of the evidence, the whole question of abandonment and the causes therefor being left to them, and we cannot say that they have so mistaken or disregarded the evidence, as to do injustice to the plaintiffs in error. The main ground of their verdict, may be found in the fact that the reserved fifteen per cent. was allowed the plaintiff, which of itself would amount to near ten thousand dollars.

Perceiving no error in the record the judgment must be affirmed.