Opinion
No. 3072.
Decided May 2, 1939.
Transitory actions in which any one of the parties is an inhabitant of this state shall be brought in the county where some one of them resides.
A foreign corporation engaged in business in this state, though complying with the prerequisites to do business here, is not a resident of this state within the meaning of P. L., c. 328, s. 1 relating to the venue of actions.
Where an action has been wrongly brought by a resident of this state in the county where a non-resident corporation has its place of business, the question is for the Superior Court whether justice requires that the action should be transferred to the county where the plaintiff resides.
TWO ACTIONS ON THE CASE, commenced by writs dated August 20, 1938, returnable to the Superior Court for Hillsborough County. The plaintiff Ruth E. Blanchette seeks to recover for personal injuries alleged to have been received on October 4, 1934, through the negligent management of the defendant's premises in Manchester. Her husband, Arthur J. Blanchette, seeks to recover for the consequential loss occasioned him by reason of the accident. Both plaintiffs are residents of Plymouth in Grafton County and the defendant is a corporation organized under the laws of New York and doing business in Manchester in Hillsborough County. Service of the writs was made in accordance with the provisions of P. L., c. 231, s. 1, relating to the service of process on foreign corporations.
The defendant filed pleas seeking abatement of the writs on the ground that the actions had been brought in the wrong county. The plaintiffs demurred. At the hearing on the demurrers it was agreed that the defendant "is a foreign corporation legally doing business in Manchester." At the conclusion of the hearing the court overruled the demurrers and ordered the cases transferred to Grafton County. The plaintiffs' bill of exceptions was allowed by Lorimer, J.
Robert W. Upton (by brief and orally), for the plaintiffs.
Demond, Sulloway, Piper Jones (Mr. Jones orally), for the defendant.
The plaintiffs' contention that the pleas are bad in form need not be considered. The material facts were established by agreement and the Presiding Justice correctly understood the question intended to be raised. Treating the pleas, with the defendant's acquiescence, as essentially motions to transfer the cases to the county in which the plaintiffs reside and holding as a matter of law that the actions should have been instituted there, he ordered the requisite change of venue. This procedure was entirely proper. P. L., c. 334, s. 8; Berry v. Osborn, 28 N.H. 279; Brooks v. Howard, 58 N.H. 190; Bartlett v. Lee, 60 N.H. 168; Wheeler c. Co. v. Whitcomb, 62 N.H. 411; Tucker v. Lake, 67 N.H. 193; Whitcher v. Association, 77 N.H. 405, 406; Langdell v. Company, 78 N.H. 243, 244.
The actions are transitory, and "Transitory actions, in which any one of the parties is an inhabitant of the state, shall be brought in the county where some one of them resides. If no one of the parties is an inhabitant of the state the action may be brought in any county." P. L., c. 328, s. 1. "The word `inhabitant' may mean a resident or person dwelling and having his home in any city, town or place." P. L., c. 2, s. 6.
As applied to corporations the adjectives "foreign" and "nonresident" are usually regarded as synonymous. 27 Columbia Law Rev. 12, 13, note. A corporation has its residence and domicile in the state in which it is incorporated, and if it extends its activities to another jurisdiction it "is in the same position as any non-resident who sends his agents into a State to do business for him." Beale, Foreign Corporations, s. 73.
Nor does the fact that a corporation has complied with all the statutory provisions prescribed by a foreign state as prerequisites of the right to do business there, make the corporation a resident of that state in the sense in which the word "resident" is used in the statutes relating to the venue of actions. 1 Fletcher, Cyc. Corp., s. 397; Ryan v. Company, 41 Cal.App. 770, 771, 772; Boyer v. Railway, 8 Ida. 74; Pue v. Railway, 78 Mont. 40, 43.
In the recent case of Babcock c. Co. v. Spaulding, 86 Fed. (2d) 256, the Circuit Court of Appeals held that a Maine corporation which owned and operated mills in New Hampshire was not a resident of this state within the meaning of P. L., c. 216, ss. 27, 28, 30, relating to conditional sales of personal property. And in the case of Jackson v. Company, 86 N.H. 341, in which an Ohio corporation brought suit against an Illinois corporation doing business here, this court advised the Superior Court to decline jurisdiction, holding that the case involved "a controversy between two non-residents."
The Presiding Justice correctly ruled that the defendant was not a resident of Hillsborough County. Whether or not justice requires the trial of the actions in that county is a question for future determination by the Superior Court. Record v. Company, 79 N.H. 495, 496; Vidal v. Errol, 86 N.H. 585.
Exceptions overruled.
All concurred.