Eureka Lake Yuba Canal Co v. Superior Court of Yuba Co.

The record in this case shows that the Eureka Lake & Yuba Canal Company, Consolidated, is a New York corporation doing business in California, and that in or about the month of March, 1880, the company filed in the office of the secretary of state of California an instrument designating and appointing 'David Cahn, of 205 Sansome street, in the city of San Francisco, * * * as the person upon whom process issued by authority of or under any law of the state of California may be served, and all process served upon said David Cahn will be valid and binding upon said corporation.' This was done in compliance with an act of the legislature of California, entitled 'An act in relation to foreign corporations,' approved April 1, 1872. On the chird of October, 1882, the county of Yuba brought suit against the corporation in the superior court of that county to enjoin the corporation from depositing or suffering to flow into the channel or bed of the Yuba river, or any of its tributaries, 'the tailings from its hydraulic mines, or the earth, sand, clay, sediment, stones, or other material discharged from its said mines,' and from selling to others any water to be used in hydraulic mining. Immediately upon the bringing of the suit an ex parte restraining order was entered by the court in accordance with the prayer of the complaint. Process in the suit, and a copy of the restraining order, were served on Cahn, November 9, 1882. On the fifth of December a motion was made to set aside this service. This motion was denied December 23d, and on the seventeenth of January the corporation, by James K. Byrne and W. C. Belcher, its attorneys, filed a demurrer to the complaint. On the twentieth of January an order was entered requiring the corporation to show cause February 2d why it should not be punished for a contempt of court in disobeying the injunction. Service of this order was directed to be made on Bigelow, the managing agent of the company, or on Cahn, the designated agent for the service of process. This service was not made on account of the absence of Cahn in the city of New York, where the company had its principal place of business. Thereupon, the time for showing cause was changed to March 24th, and service of an order to this effect was made on Cahn, March 5th. After this service, the corporation appeared by its attorneys, and moved to set aside the order to show cause, on the ground, among others, that Cahn was not on the fifth of March, 'and had not been for more than one month prior thereto,' the person designated by the corporation as its agent for the service of process. Upon the hearing of this motion, it appeared that the appointment of Cahn as process agent had been revoked, and Bigelow put in his place. Such being the case, a further order was entered requiring like cause to be shown April 23d, and efforts were made to serve this order on Bigelow, who was the only person in the state on whom process against the corporation could be served. Bigelow resided at the mines, and the record shows clearly that he purposely kept himself out of the way of the officer to avoid service. No service was therefore made on him, and upon the return of the facts, supported by affidavits, May 14th was fixed by the court as the time for the hearing, and an order was entered that service be made upon 'the attorneys of record herein of said defendant.' This service was effected. At the return-day the attorneys of the defendant, appearing specially for that purpose, moved to set aside the order to show cause, (1) because the restraining order was void, the court having 'no jurisdiction of the person of the defendant at the time the said order was made and issued;' (2) because the 'judge who made the same was, at the time the same was made, disqualified by law to make the said order;' (3) because the order 'was granted without due notice, or any notice whatever, to the proper officer or any officer or officers, or to the managing agent, or any agent, of said corporation, of the application therefor;' (4) because the restraining order was 'never served on the defendant;' and (5) because the order to show cause was 'never served upon the defendant.' This motion was overruled, and thereupon, the corporation not appearing, 'by attorney or otherwise, to show cause * * * in relation to said contempt,' but making default 'in said matter of contempt,' a hearing was had 'upon said order to show cause, and said affidavits and the records and papers in said court and action,' and the corporation was adjudged to be guilty of contempt, and to 'pay a fine to the people of the state of California in the sum of two hundred and fifty dollars as a punishment for such contempt, and that execution issue in the name of the people of the state of California against said defendant therefor.'

On the twenty-sixth of July, 1883, the corporation filed in the supreme court of the state a petition for review, on the ground that 'in entering said order of injunction, and in assuming thereafter to adjudge the petitioner guilty of contempt for its alleged violation of said order, the said superior court of said county of Yuba, and the said judge thereof, exceeded the jurisdiction thereof.' Upon this petition, the orders of the superior court were affirmed, and to reverse that judgment this writ of error was brought.

W. W. Cope, for plaintiff in error.

A. L. Rhodes, for defendant in error.

[Argument of Counsel from pages 413-415 intentionally omitted]

WAITE, C. J.