Lawrence v. Ballou
Before: McKinstry
Synopsis
Making an Additional Pabtt a Defendant.—If the plaintiff moves on the 19th of April for an order to bring in an additional party as a defendant, and the order is made, and on the 13th of May stipulates that such party may file an answer nunc pro tune, as of the 19th of April, the plaintiff is estopped from saying that such defendant was not a party, and in court from the 19th of April.
When Foreign Cobfobation mat belt on Statute of Limitations.—If a foreign corporation has a managing agent in this State who exercises his authority openly as such, without fraudulent concealment, it may be sued in the courts of this State, and service of process made personally upon such managing agent; and if the agent, as such, has held and possessed land for the company for five years, the corporation may claim the benefit of the Statute of Limitations.
Statute of Limitations as to Realtt.—In ejectment, a party who is brought in on motion of the plaintiff, as an additional defendant, after the suit has been pending a long time, may claim the benefit of the Statute of Limitations up to the day he is made a party.
Effect of Averments in Complaint in Ejectment.—If the plaintiff, in his complaint in ejectment, alleges that the defendant is present and in the actual occupation of the demanded premises, he cannot afterwards be heard to say that the defendant was not present and in occupation, but was out of the State, when the defendant relies upon his presence and occupation as constituting an adverse possession, and as entitling him to the benefit of the Statute of Limitations.
Erroneous Judgment.—A judgment rendered against a party who is brought in by motion as a defendant after the trial is concluded is erroneous as to such party.
Possession of Land by an Agent.—If, in ejectment, a-corporation and its managing agent are both made defendants, and the court finds that the corporation is and has been in possession of the demanded premises by its agent, and that the corporation has a legal defense to the action, the possession of the agent cannot be disturbed.
By the Court, McKinstry, J.: These are cross-appeals in the same cause, and were argued together.
The Hazard Powder Company did not become a party to this action until the 19th day of April, 1871, when its answer was in effect filed. The plaintiff having moved to make the company a party defendant on the 19th of April, and having stipulated on the 13th of May that the answer should be filed on that day as of the 19th of April, cannot be [264]heard to say that the company was not a party and present in court from the last-named day.
If the Hazard Powder Company be considered as appearing on the 19th of April, the Statute of Limitations had run in its favor, since the District Court found that the company ousted and ejected the plaintiff September 13, 1865, and from thence had held the adverse possession. The Court also found that E. H. Parker had been the managing agent of the company (a foreign corporation), in this State from the first day of January, 1853. We are of opinion that when a foreign corporation has a managing agent in this State (exercising openly his authority as such, and without fraudulent concealment), the corporation is within the State within the intent of the Statute of Limitations. It may be sued in the courts of this State, and service of process made personally upon the managing agent, and if the latter exercised his functions here continuously for the period fixed by the Statute of Limitations, the corporation may claim the benefit of the statute.
. In the present case the corporation was made a party defendant, and the complaint alleges an entry and ouster by the company, and an adverse holding of the premises since the 2d of May, 1865, and the court below found as a fact that the ouster occurred more than five years before the company was made a party defendant. It cannot be claimed that the defendant was present and in the actual occupation for the purpose of being sued, but that the court must, at the same time, ignore its presence and occupation when they are relied upon as constituting an adverse possession and defense.
If, however, it were correct to say that the Hazard Powder Company was not a party defendant until the 14th day of May (which was after the trial was finished), it is clear that the judgment against the company should be reversed.
The court found that the defendant Parker had no other occupation of the premises than as agent of the Hazard Powder Company, and the latter having established a legal defense to the action, it necessarily results that the possession of the agent cannot be disturbed.
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