averments respecting the facts presumed. They have no place for consideration when the evidence is disclosed or the averment is made. When, therefore, the record states the evidence or makes an averment with reference to a jurisdictional fact, it will be understood to speak the truth on that point, and it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise than as averred." In the same case: "It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his day in court; by which is meant until he has been duly cited to appear, and has been afforded an opportunity to be heard. Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and never can be upheld where justice is justly administered." The question of the jurisdiction of the Pennsylvania court being, then, open, on this record, let us see what presumptions arise from the showing made by it.

The complaint in this case, as we have seen, alleged that on the 3d day of December, 1897, the date of the insurance certificate, as well as prior and subsequent thereto, the defendant association engaged in business in Pennsylvania, soliciting applications for insurance and issuing policies to residents of that commonwealth. The answer denied each and every material allegation in the complaint, and such a denial under the Indiana Code of Civil Procedure was sufficient to put the plaintiffs upon proof of every fact that was essential in establishing their cause of action. Thornton's Code Ind. art. 10, § 47, title "Pleadings;" U. S. Rev. Stat. § 914, U. S. Comp. Stat. 1901, p. 684.

the commissioner of insurance for Pennsylvania, the defendant association not having appointed an agent in that commonwealth upon whom process could be served nor hav. ing appeared by an attorney or representative. 3. That, the insurance commissioner not having appeared in the action, judgment was taken against the defendant; and that is the judgment here in suit.

It was further made to appear in the present action that when the contract of insurance was executed, as well as before and since, it was provided by a statute of Pennsylvania, approved June 20th, 1883, amendatory of a previous statute of that commonwealth establishing an insurance department, as follows: "No insurance company not of this state, nor its agents, shall do business in this state until it has filed with the insurance commissioner of this state a written stipulation, duly authenticated by the company, agreeing that any legal process affecting the company, served on the insurance commissioner, or the party designated by him, or the agent specified by the company to receive service of process for said company, shall have the same effect as if served personally on the company within this state, and, if such company should cease to maintain such agent in this state so designated, such process may thereafter be served on the insurance commissioner; but, so long, as any liability of the stipulating company to any resident of this state continues, such stipulation cannot be revoked or modified, except that a new one may be substituted, so as to require or dispense with the service at the office of the said company within this state, and that such service of process according to this stipulation shall be sufficient person. al service on the company. The term "process" shall be construed to mean and The burden of proof was therefore upon include any and every writ, rule, order, nothe plaintiffs to show by what authority the tice, or decree, including any process of Pennsylvania court could legally enter a per- execution that may issue in or upon any acsonal judgment against a corporation which, tion, suit, or legal proceeding to which said according to the complaint itself, was a cor- company may be a party by themselves, or poration of another state, and was not al- jointly with others, whether the same shall leged to have appeared in person or by an arise upon a policy of insurance or other. attorney of its own selection, or to have been wise, by or in any other court of this compersonally served with process. This bur-monwealth having jurisdiction of the subden the plaintiffs met by introducing in evi- ject-matter in controversy, and, dence a complete transcript of the record in default of an agent appointed by the of the action in the Pennsylvania court, company, as aforesaid, then the officer so from which it appeared: 1. That the defend. charged with the service of said process ant association was sued in the Pennsylva- shall, in like manner, deputize the sheriff, nia court as a life insurance association of constable, or other officer aforesaid of the Indiana, was alleged to have been engaged county where the agent, if any there be, in business in Pennsylvania, and was so named by the insurance commissioner, may engaged before and after the certificate of reside, to serve the same on him, and, in insurance in question was issued. 2. That default of such agent named by such comthe summons in that action was served on missioner, as aforesaid, then in like manner

to deputize the sheriff, constable, or other before the suit was instituted in Pennsyl officer, as aforesaid, of the county where the office of the insurance commissioner may be located, to serve the same on him; and each and every service so made shall have the same force and effect, to all intents and purposes, as personal service on said company in the county where said process issued;

vania. In order to obviate this difficulty the plaintiffs, in their declaration or statement in assumpsit, in the Pennsylvania court, alleged that the contract of insurance was governed by the laws of Indiana, "the contract having been entered into at Indianapolis, Indiana;" also, that "said policy of insurance and the contract touching the issuing the same were executed in the state of Indiana, in which state all provisions limiting liability on policies where suit is not brought within a certain time are held void and of no account." The plaintiffs cannot, therefore, be heard now to say that the contract was not, in fact, made in Indiana. What they alleged in the Pennsylvania suit precluded the idea that the contract of insurance was made in that commonwealth. Indeed, if they had alleged that the business was transacted in Pennsylvania, their action on the contract would have been defeated by the condition in the policy that no suit thereon could be brought on it after the expiration of six months from the death of the person whose life was insured.

The defendant association introduced no evidence. If, looking alone at the plead ings in the Pennsylvania suit, it be taken that, at the time of the contract in question, the Indiana corporation was engaged in transacting, at least some business in Pennsylvania, without having complied with the provisions of the above statute of that commonwealth, that is, without having filed with the insurance commissioner the written stipulation required by that statute, -still, plaintiffs cannot claim, on the present record, the full benefit of the general rule that the judgment of a court of superior authority, when proceeding within the general scope of its powers, is presumed to act rightly within its jurisdiction; that nothing shall be "intended to be out of the jurisdiction of a superior court but that But even if it be assumed that the inwhich specially appears to be so." Pea-surance company was engaged in some busicock v. Bell, 1 Wms' Saund. 74. When a ness in Pennsylvania at the time the conjudgment of a court of superior authority tract in question was made, it cannot be is attacked collaterally for the want of ju- held that the company agreed that service risdiction, such a presumption cannot be in- of process upon the insurance commissioner dulged when it affirmatively appears from of that commonwealth would alone be suf the pleadings or evidence that jurisdiction ficient to bring it into court in respect of all was wanting. We make this observation in business transacted by it, no matter where, view of the fact, distinctly shown by the with, or for the benefit of, citizens of plaintiffs themselves, that the policy of in- Pennsylvania. Undoubtedly, it was surance and contract in question was, in petent for Pennsylvania to declare that no fact, executed in Indiana, and not in Penn- insurance corporation should transact busisylvania. The policy sued on provided as ness within its limits without filing the one of its conditions that "for all purposes written stipulation specified in its statute. and in all cases this contract shall be Lafayette Ins. Co. v. French, 18 How. 404, deemed to have been made at the special 15 L. ed. 451; Paul v. Virginia, 8 Wall. 168, office of this association in the state of In- 19 L. ed. 357; Hooper v. California, 155 U. diana, U. S. A., and all benefits and claims S. 648, 653, 39 L. ed. 297, 300, 5 Inters. Com. thereunder shall be payable at such of Rep. 610, 15 Sup. Ct. Rep. 207, and aufice." Besides, to the complaint or petition thorities cited; Waters-Pierce Oil Co. v. in the Pennsylvania court was appended the Texas, 177 U. S. 28, 45, 44 L. ed. 657, 664, 20 following memorandum signed by the at- Sup. Ct. Rep. 518. It is equally true that, torney for the plaintiffs: "The above con- if an insurance corporation of another state tract of insurance is governed by the laws transacts business in Pennsylvania without of the state of Indiana, the contract hav-complying with its provisions, it will be ing been entered into at Indianapolis." And deemed to have assented to any valid terms when the suit was brought in Pennsylvania prescribed by that commonwealth as a conthe plaintiffs were confronted with the con- dition of its right to do business there; and dition in the policy that "it is expressly it will be estopped to say that it had not understood and agreed that no action shall done what it should have done in order that→ be maintained nor recovery had for any it might lawfully enter that commonwealth claims under or in virtue of this policy, aft- and there exert its corporate powers. er the lapse of six months from the death Baltimore & O. R. Co. v. Harris, 12 Wall. 65, of said member,"-McNally. More than six 20 L. ed. 354, the question was as to the months had elapsed after McNally's death | jurisdiction of the supreme court of the Dis

com

In

2

The judgment of the Supreme Court of Indiana must, therefore, be reversed, with directions for further proceedings not inconsistent with this opinion. It is so ordered.

trict of Columbia of a suit against a corpo- | sylvania court in rendering the judgment ration in Maryland, whose railroad entered must be deemed that of the state within the District with the consent of Congress. the meaning of the 14th Amendment,t—we This court said: "It [the corporation] | hold that the judgment in Pennsylvania was cannot migrate, but may exercise its au- not entitled to the faith and credit which, thority in a foreign territory upon such con- by the Constitution, is required to be given ditions as may be prescribed by the law of to the public acts, records, and judicial prothe place. One of these conditions may be ceedings of the several states, and was void that it shall consent to be sued there. If as wanting in due process of law. it do business there it will be presumed to have assented, and will be bound accordingly." This language was cited and approved in Chicago & N. W. R. Co. v. Whitton, 13 Wall. 270, 285, 20 L. ed. 571, 576. The same question was before the court in Ex parte Schollenberger, 96 U. S. 369, 376, 24 L. ed. 853, 854, and the principle announced in the Harris and Whitton Cases was approved. In the Schollenberger Case the Pennsylvania statute here in question was involved. To the same effect are the following cases: Ehrman v. Teutonia Ins. Co. 1 McCrary, 123, 129, 1 Fed. 471; Knapp, S. & Co. v. National Mut. F. Ins. Co. 30 Fed. 607; Berry v. Knights Templars' & M. Life Indemnity Co. 46 Fed. 439, 441, 442; Diamond Plate Glass Co. v. Minneapolis Mut. F. Ins. Co. 55 Fed. 27; Stewart v. Harmon, 98 Fed. 190, 192.

(204 U. S. 1) FRANKLIN S. JEROME, Plff. in Err., CHARLES P. COGSWELL, the State Savings Bank, et al.

V.

National banks-reduction of capital stock -distribution of charged-off assets.

The stockholders of record at the

time of the reduction of the capital stock of a national bank, and not those of record tled to the proceeds of the bad or doubtful at the expiration of its charter, are entiassets set apart at the time of such reduction in compliance with the requirement of the Comptroller of the Currency that such assets should be charged off or set aside for the benefit of those who were then stockholders, the bank, after such reduction,

being left with its capital stock, as reduced, unimpaired, and a surplus exclusive of the assets in question.

Conceding, then, that by going into Pennsylvania, without first complying with its statute, the defendant association may be held to have assented to the service upon the insurance commissioner of process in a suit brought against it there in respect of business transacted by it in that commonwealth, such assent cannot properly be implied where it affirmatively appears, as it does here, that the business was not transacted in Pennsylvania. Indeed, the Argued November 2, 1906. Decided January Pennsylvania statute, upon its face, is only directed against insurance companies who

do business in that commonwealth,-"in

this state." While the highest considerations of public policy demand that an insurance corporation, entering a state in deQ fiance of a statute which lawfully prescribes the terms upon which it may exert its powers there, should be held to have assented to such terms as to business there transacted by it, it would be going very far to imply, and we do not imply, such assent as to business transacted in another state, although citizens of the former state may be interested in such business.

As the suit in the Pennsylvania court was upon a contract executed in Indiana; as the personal judgment in that court against the Indiana corporation was only upon notice to the insurance commissioner, without any legal notice to the defendant association, and without its having ap: peared in person or by attorney or by agent in the suit; and as the act of the Penn27 8. C.-16.

[No. 80.]

7, 1907.

IN ERROR to the Supreme Court of Errors

of the State of Connecticut to review a the Superior Court of New London County, judgment which, reversing the judgment of in that state, adjudged that the stockholders of record of a national bank at the time of its reduction of its capital stock were entitled to the charged-off assets, and directed distribution accordingly. Affirmed. See same case below, 78 Conn. 75, 60 Atl. 1059.

Statement by Mr. Chief Justice Fuller:
The Second National Bank of Norwich,

+Ex parte Virginia, 100 U. S. 339, 346, 347, 25 L. ed. 676-680; Neal v. Delaware, 103 U. S. 370, 26 L. ed. 567; Yick Wo T. Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064; Gibson v. Mississippi, Rep. 904; Chicago, B. & Q. R. Co. v. Chi 162 U. S. 565, 40 L. ed. 1075, 16 Sup. Ct. cago, 166 U. S. 226, 233, 234, 41 L. ed. 979, 983, 984, 17 Sup. Ct. Rep. 581

Connecticut, was a banking association, | items were of real estate; the rest were not organized and existing under the laws of the United States, with a capital stock of $300,000.

of ownership of original stock when capital | should be charged off or set aside for the was reduced; of such stock, although it had been surrendered and new stock issued; and of stock after the reduction,-were filed. The superior court held that those assets belonged to the bank, and should be distributed to the stockholders of record at the expiration of its charter.

The reduction in this case was accomplished at a time when the bank was not being wound up, by the required vote of the stockholders, and with the approval of the Comptroller of the Currency, and the R. FRANK WILSON, Sheriff of Stark Coun