foreign company, or revoke the authority of the Insurance Commissioner to accept process in an action thereon against the company.

8. FOREIGN JUDGMENTS-ACTIONS ON-FEDERAL QUESTION.

The question, in an action on a judgment of a court of another state, whether the foreign court obtained jurisdiction to render the judgment, is a federal question, so that a decision thereon of the Supreme Court of the United States, rather than one of a state court, must be followed.

Eleven actions by Henry P. C. Johnston and others against the Mutual Reserve Fund Life Insurance Company. Judgment for plaintiffs.

Addison G. Ricaud and Gilbert E. Roe, for plaintiffs.

George Burnham, Jr., and Frank R. Lawrence, for defendant.

SEABURY, J. By a stipulation entered into between counsel, II actions, involving substantially the same question of fact and law, were heard at the same time before the court without a jury. These actions are brought by assignees of judgments which were recovered against the defendant in the state of North Carolina. The defendant is a corporation organized under the laws of the state of New York. The original actions, commenced in North Carolina, were to recover damages for alleged breach of contracts of insurance entered between citizens of that state and the defendant. All of these actions resulted in judgments against the defendant, the validity of which was sustained by the Supreme Court of North Carolina. Biggs v. Mut. Res. Fund Life Ass'n, 128 N. C. 5, 37 S. E. 955; Moore v. Mut. Res. Fund Life Ass'n, 129 N. C. 31, 39 S. E. 637. The judgments now sued upon were recovered in the superior court of North Carolina, which is a court of superior and general jurisdiction. The ground upon which these actions are defended is that the court of North Carolina in which these judgments were recovered did not have jurisdiction of the person of the defendant. Proper copies of the judgment records being produced, and the court in which they were recovered being one of general jurisdiction, the law presumes that it had jurisdiction of the person of the defendant, unless something to indicate the contrary appears. Voorhees v. Bank of U. S., 10 Pet. 449, 9 L. Ed. 490; Harvey v. Tyler, 2 Wall. 328, 342, 17 L. Ed. 871; Galpin v. Page, 18 Wall. 350, 21 L. Ed. 959; Bosworth v. Vanderwalker, 53 N. Y. 597; Ferguson v. Crawford, 86 N. Y. 609; Applegate v. Lexington, etc., Mining Co., 117 U. S. 255, 6 Sup. Ct. 742, 29 L. Ed. 892. In Bosworth v. Vanderwalker, supra, Folger, J., said:

"The intendment of law, however, is that a superior court of general powers had jurisdiction, until the contrary appears. And this intendment is of jurisdiction of the subject-matter, not only, but of the person of the defendant, also. The record of the judgment is prima facie evidence,

and will be held conclusive until clearly and explicitly disproved."

The answer of the defendant impugned the jurisdiction of the North Carolina court, and the defendant subsequently proved its alleged revocation of the authority of the person upon whom service of process was made. Under these circumstances, it is perfectly clear that no injury was done to the defendant by permitting the

and 121 New York State Reporter

plaintiff to go outside of the record, and to offer evidence tending to sustain the recitals therein contained. The jurisdiction of the North Carolina court was the fact to be proved, and, in view of the assault which the defendant made upon it, all evidence tending to prove the plaintiff's contention that the court had jurisdiction was competent. The facts proven outside of the record were not by law a requisite part of the judgment roll, but this fact did not make them incompetent as evidence. Thus Judge Folger, in Bosworth v. Vanderwalker, supra, said:

"There was no error in receiving in evidence papers as to the appointment of a guardian. The sole objection to them was that they formed no part of the record. * * * That they were not by law a requisite part of the judgment roll did not make them incompetent as evidence."

The defendant's objection relates to the order of proof, rather than to the competency of the evidence received. This was a matter within the discretion of the trial court, and the defendant was in no way prejudiced by taking the proof when it was offered, rather than at a later stage of the trial.

In order to acquire jurisdiction over a foreign corporation for the purpose of obtaining a personal judgment against it, it is necessary that the corporation be doing business within the state at the time service is made, and that service of process within the state shall be upon an agent of the corporation duly authorized to accept service. In the case of Conn. Mut. Life Ins. Co. v. Spratley, 172 U. S. 602, 19 Sup. Ct. 308, 43 L. Ed. 569, the court stated the rule in the following language:

"In a suit in a state court against a foreign corporation, where no property of the corporation is within the state, and the judgment sought is a personal one, it is material to ascertain whether the corporation is doing business within the state; and, if so, the service of process must be upon some agent in the state so far representing it that he may properly be held, in law, its agent to receive such service in its behalf."

Before deciding the question as to whether the North Carolina court had jurisdiction of the person of the defendant, it becomes necessary, therefore, to determine the following questions: (1) Was the defendant doing business within the state of North Carolina at the time service was made? And (2) was the service of process made within the state upon an agent of the defendant duly authorized to accept service?

1. Service in all the cases involved in all the actions now before the court was made after the 13th day of April, 1899, on the Insurance Commissioner of North Carolina. On or about the 18th day of May, 1899, the defendant withdrew all of its agents through which it had theretofore done business from the state of North Carolina. But the evidence established that, notwithstanding this withdrawal, the defendant nevertheless transacted business after this date in that state. A review of the evidence upon this point will, I think, establish this fact beyond question. Policies remained in force after the date of the alleged withdrawal, and premiums and assessments upon these policies were paid by persons living in North Carolina by remitting the premiums to the home office of the defendant, in New

York City. Where losses occurred, the defendant remitted the amount of the loss, as adjusted, to the person entitled to receive it in the state of North Carolina. An agent of the defendant, after the date of the alleged withdrawal, went into the state of North Carolina with authority to adjust a particular loss, and actually adjusted it. In one instance the defendant instructed a bank in the state of North Carolina to receive premiums due on a policy, and to deliver a check in payment of the amount of the policy. On another occasion it authorized a member of the bar of that state, as its attorney, to adjust a disputed claim, which duty said attorney duly performed. Upon still another occasion the proof shows that the defendant issued a new policy to a policy holder residing in the state upon the surrender of the old policy. The surrender of the old and the issue of the new policy were effected by mail. While it is true that the plaintiff has proved only isolated instances showing the acts enumerated above, it can hardly be doubted that all of these instances establish the fact that the defendant was doing business in the state of North Carolina at the time service was made upon the Insurance Commissioner. In Mut. Res., etc., Ass'n v. Phelps, 190 U. S. 147, 23 Sup. Ct. 707, 47 L. Ed. 987, which was a case in many respects similar to the cases now at the bar, the Insurance Commissioner of the state of Kentucky on October 10, 1899, canceled the license of this defendant to do business in the state of Kentucky. In that case, in determining what constituted "doing business within the state," the court said:

"It was stipulated between the parties that the outstanding policies existing between the association and citizens of Kentucky were continued in force after the action of the Insurance Commissioner, on October 10, 1899, and that on said policies the association had collected and was collecting dues, preiniums, and assessments. It was therefore doing business within the state. Mut. Life Ins. Co. v. Spratley, 172 U. S. 602 [19 Sup. Ct. 308, 43 L. Ed. 569]." 2. In determining whether service of process within the state of North Carolina was made upon an agent duly authorized to accept service, it is necessary to review the legislation of that state in reference to insurance corporations doing business within the limits of its sovereignty, and to ascertain the relations existing between this defendant and the state of North Carolina and those citizens of that state who held policies issued by the defendant. The policies upon which the judgments now in suit were recovered were issued between the 14th day of December, 1882, and the 10th day of September, 1892. As early as 1876 (Laws 1876-77, P. 303, c. 157) the Legislature of North Carolina enacted a law prohibiting any foreign insurance company from issuing policies, taking risks, or transacting business in that state until it should appoint an agent residing in that state, who should act as such until a successor should be duly appointed, upon whom any civil process might be served. The law further provided that services upon such agent should be binding, and be personal service upon the company appointing him, and for the filing of a certificate of such appointment with the Secretary of the State. The certificate of appointment was required to—

"Contain a stipulation that in case of the death, absence or removal from the state of such agent, the company shall forthwith appoint another in his stead,

and 121 New York State Reporter

and, failing to do so, the Secretary of the State shall make such appointment, notifying the company thereof; and if such company withdraw from, or cease to do business in, the state, service upon such agent shall, nevertheless, be binding and be deemed a personal service upon such company, so long as any liability remains outstanding against the company in this state."

In 1883 (Pub. Laws 1883, p. 98, c. 57) the Secretary of State was authorized to issue licenses to do insurance business, provided that before the issue of any license the applicant therefor should appoint a general agent, who shall be a citizen and resident of the state, and file a certificate of such appointment, which certificate should"Contain a stipulation agreeing that so long as there may be any liability on the part of the applicant under any contract entered into in pursuance of any law concerning insurance, any legal process affecting the applicant may be served in his absence upon such general agent, or upon the Secretary of State. and when so served, shall have the same effect as if served personally on such applicant in this state: provided, when such service is made upon the Secretary of State it shall be his duty to transmit at once a copy of the process to the home office of the company."

In 1899 it was enacted that:

"No foreign insurance company shall be admitted, and authorized to do business until * it shall constitute and appoint the Insurance Commissioner, or his successor, its true and lawful attorney, upon whom all lawful process in any actions or legal proceedings against it may be served, and therein shall agree that any lawful process against it which may be served upon its said attorney shall be of the same force and validity as if served on the company, and the authority thereof shall continue in force, irrevocable, so long as any liability of the company remains outstanding in this commonwealth." Laws 1899, p. 175, c. 54, § 62.

These are the only laws of the state of North Carolina to which it is necessary to refer at this time. The defendant complied with the requirements of these statutes up to the time of its formal withdrawal from the state. All of the policies upon which the judgments now in suit were recovered were issued while the law permitting service to be made on the Secretary of State was in force. On or about the 13th day of April, 1899, pursuant to the act of 1899, the defendant duly executed written authority to James R. Young, the Insurance Commissioner, or his successor in office, constituting him its true and lawful attorney—

"Upon whom all lawful process in any action or legal proceeding against it may be served, subject to and in accordance with the provisions of the laws of the state of North Carolina now in force, and such other laws as may hereafter be executed in relation thereto; and said company does hereby expressly agree that any lawful process against it which may be served upon said James R. Young, insurance commissioner, or his successor, shall be of same force and validity as if served on this company, and this authority shall continue in force and irrevocable so long as any liability of said company remains outstanding in said state."

In the actions which resulted in the judgments which are the subject of these actions, service was made upon the Insurance Commissioner designated in this written authority. The defendant now contends that the designation of the Insurance Commissioner under the act of 1899 appointing him as the person upon whom service could be made in actions brought upon policies issued after his appointment

gave him no authority to receive service in actions brought upon policies issued prior to his appointment. It contends that his appointment had no reference to the past. It is true that, prior to the passage of this law, other persons were designated under the act of 1876 and the act of 1883 as the persons upon whom process should be served; but that fact is no indication that the state could not prescribe that another official should be designated for this purpose, or that the corporation itself could not designate other agents, provided that it did not violate the law in so doing. The agent designated under the act of 1876 was to act in that capacity "until a successor be duly appointed." Under the act of 1883, service was to be made upon the general agent or upon the Secretary of State. The enactment of these provisions did not mean that the state thereby surrendered the right to devolve this duty upon another official. The obvious purpose of the whole legislation to which reference has been made was to enable its citizens having claims against foreign corporations doing business in that state to litigate those claims in courts of the state where the contracts were made, so that they should not be put to the annoyance and expense incident to being obliged to pursue the corporation to the state of its origin, and attempt to enforce their claims in the courts of that state. As was said by Mr. Justice Brewer in the Phelps Case, supra, such statutes "indicate the purpose of the state that foreign corporations engaging in business within its limits shall submit the controversies growing out of that business to its courts, and not compel a citizen having such a controversy to seek, for the purpose of enforcing his claim, the state in which the corporation has its home." The act of the Legislature requiring that a different official should be designated as the person upon whom process could be served did not alter or diminish in an respect the rights of the insurance company. To hold that the Legislature intended that, after the act of 1899, those having causes of actions against such companies should serve process only upon those upon whom process could have been served at the time the contract was made, if the cause of action had arisen at that time, is to place a construction upon this legislation which is, in my judgment, wholly unreasonable and in direct violation of legal authority. The law substituting the Insurance Commissioner in the place of the Secretary of State as the person upon whom service should be made did not in any way affect the rights of the defendant, or the policy holders who had contracted with it. It merely prescribed a different remedy or means whereby the same rights which grew out of the contract could be enforced. Nor was the result of the change a remedy substantially different from that which previously existed. In designating the Insurance Commissioner, rather than the Secretary of State, as the person upon whom process was to be served, the change was merely as to the remedy. Nor is there any doubt as to the right of the state to alter or prescribe new remedies by which existing rights may be enforced, provided that contract obligations are not impaired. In Railroad Co. v. Hecht, 95 U. S. 168, 24 L. Ed. 423, it was held that a statute which prescribed a mode of serving process upon railroad