but may be implied. They must not, however, encroach upon that principle of natural justice which requires notice of a suit to a party before he can be bound by it. The conditions regulating service of process must be reasonable, and the service provided should be only upon such agents as may be properly deemed representatives of the foreign corporation. A voluntary appearance by a foreign corporation is equally effective with proper service of process; and the foreign corporation is precluded from afterwards questioning jurisdiction over the person.2 (c) Service upon Officer Casually in a State.-At common law, should the chief officer of a foreign corporation come into a State on business unconnected with the corporation, he would not so represent it there that service of process on him would be valid.3 The undoubted weight of authority is to the effect that an officer of a foreign corporation casually within a State, but not there on duty as such officer, nor authorized in any way by his corporation to submit to service, cannot be served with process so as to give jurisdiction over the corporation. (U. S.) 408. Ex parte Schollenberger, 96 U. S. 369; Stillwell v. Empire Fire Ins. Co., 4 Cent. L. J. 463; Stevens v. Pratt, IOI Ill. 206; National Bank v. Hunting don, 129 Mass. 444. In Lafayette Ins. Co. v. French, 18 How. (U. S.) 404, the court went still further than did the New York court, and held that the judgment was enforceable even beyond the State. See also Copin v. Adamson, L. R. 9 Exch. 345; s. c., 10 Moak Eng. R. 492; Schibsby v. Westenholz, L. R. 6 Q. B. 155. The State may prescribe, as a condition of the entrance therein of a foreign corporation, that such corporation shall consent to be sued there. "If it do business there, it will be presumed to have assented, and will be bound accordingly." Railroad Co. v. Harris, 12 Wall. (U. S.) 81; Lafayette Ins. Co. v. French, 18 How. (U. S.) 405. 1. St. Clair v. Cox, 106 U. S. 350; s. c., I Am. & Eng. Corp. Cas. 19. 2. No. Mo. R. Co. v. Akers, 4 Kan. 488. A case was brought, in a Wisconsin court, against a foreign corporation, in which, under the Wisconsin statute, the court could have had no jurisdiction had defendant objected by making affidavits showing (1) that plaintiff was a non-resident, or (2) that the foreign corporation had no property in the State. But in stead, defendant appeared generally, and demurred because the court had no jurisdiction and because the complaint did not state sufficient cause of action. After putting in the demurrer, defendant had the case removed to the Federal court, where again it demurred. Held, that the In any event, judgment against defendant had waived any defect in the service and had submitted itself to the court. Friezen v. Allemania Fire Ins. Co. (Wis.), 30 Fed. Rep. 350, citing Johnson v. Trade Ins. Co., 132 Mass. 432; Clay Fire, etc., Co. v. Huron Salt & Lumber Mfg. Co., 31 Mich. 346; Mohr v. Ins. Co. (Ohio), 12 Fed. Rep. 474; Carstairs v. Ind. Co. (Ind.), 13 Fed. Rep. 823; Dennick v. R. Co., 103 U. S. 11; Edwards . Ins. Co. (N. Y.), 20 Fed. Rep. 452; Conugar v. Galena, etc., R. Co., 17 Wis. 477; Upper Miss. Transp. Co. v. Whittaker, 16 Wis. 233. The full faith and credit clause in the Federal Constitution applies only where the corporation was brought into court either by service of process within its jurisdiction or by an appearance to the action. Moulin v. Trenton Mut., etc., Co., 24 N. J. L. 222. 3. Bushel v. Commonwealth Ins Co., 15 S. & R. (Pa.) 176. See also City Fire Ins. Co. v. Carrugi, 41 Ga. 671, where service on occasion of such accidental visit is said to be doubtful. Gives no jurisdiction: Latimer v. Union Pac. R. Co., 43 Mo. 105. In Newell v. Great Western R. Co., 19 Mich. 345. it was said that the court would not infer that the legislature meant to authorize service on a foreign corporation by service on officer accidentally or casually in the State, the action being by a non-resident, the cause of action arising beyond the State, the machinery, etc., of the company being also beyond the State; and held such service void. 4. St. Clair v. Cox, 106 U. S. 350; s. c., I Am. & Eng. Corp. Cas. 19; Good a foreign corporation not doing business in a State, but obtained by service of process upon an officer casually in a State, cannot be enforced elsewhere.1 An opposite view has been asserted by some New York courts, but these decisions certainly conflict with the commonly accepted Opinion.2 pe Co. v. Railway Barb-fencing Co. Y), 22 Fed. Rep. 635; Moulin v. TrenMut., etc., Co., 24 N. J. L. 222; Mcqueen . Middleton Mfg. Co., 16 Johns. (S. Y.) 5; Middlebrooks v. Ins. Co., 14 Conn. 301; Peckham v. North Parish, 16 Pick. (Mass.) 286; Newell v. Great West. R. Co., 19 Mich. 336; Minnesota v. Eau Claire Dells Imp. Co., 26 Minn. 233. Compare Benwood Iron Works v. Hutchinson, 101 Pa. St. 359. In St. Clair v. Cox, 106 U. S. 350; s. c., I Am. & Eng Corp. Cas. 19, the court, Field, J., observes: "In McQueen v. Middleton Mfg. Co., 16 Johns. (N. Y.) 7. decided in 1819, the supreme court of New York, in considering the question whether the law of that State authorized an attachment against the property of a foreign corporation, expressed the opinion that a foreign corporation could not be sued in the State, and gave as a reason that the process must be served on the head or principal officer within the jurisdiction of the sovereignty where the artificial body existed; observing that, if the president of a bank went to New York from another State, he would not represent the corporation there, and that his functions and his character would not accompany him when he moved beyond rhe jurisdiction of the government under whose laws he derived his character. The opinion thus expressed was not perhaps necessary to a decision of the case, but nevertheless it has been accepted as correctly stating the law. It was cited with approval by the supreme court of Massachusetts in 1834, in Peckham V. North Parish in Haverhill, 19 Pick. (Mass.) 274, the court adding that all foreign corporations were without the jurisdiction of the process of the courts of the commonwealth. Similar expressions of opinion are found in numerous decisions, accompanied sometimes with the sugges tions that the doctrine might be otherwise if the foreign corporation sent its officer to reside in the State and transact business there on its account. Libby v. Hodgdon, 9 N. H. 394; Moulin v. Trenton Ins. Co., 24 N. J. L. 222." In the circuit court of the United States, Wallace, J., was of a contrary opinion. He held that a foreign corporation is not found" within a district, 8 C. of L.-25 within N. Y. Rev. Stat. § 739, for service of process, when its president comes temporarily into such district upon the business of the corporation, such corporation having no office or place of business therein, and not having transacted any business therein, except that which the president came to settle. In Good Hope Co. v. Railway Barbfencing Co. (N. Y.), 22 Fed. Rep. 634, the court said: It is quite clear that service of process upon an agent of a foreign corporation while merely casually present in the State is not equivalent to a personal service upon an individual, in conferring jurisdiction upon a court to render a personal service; and such a judgment would be treated as void for want of jurisdiction by other tribunals than those of the State where it was obtained. The authorities may be found in the note to $522, Morawetz Priv. Corp. The subject has recently been considered by the supreme court of the United States, in St. Clair v. Cox, 106 U. S. 350, and Mr. Justice Field, speaking for the court, said: We are of opinion that, when service is made within the State upon an agent of a foreign corporation, it is essential, in order to support the jurisdiction of the court to render a personal judgment, that it should appear somewhere in the record that the corporation was engaged in business in the State,' Jurisdiction, in Georgia, is not acquired by service on the auditor of an insurance company which did business in South Carolina and Florida but none in Georgia, although the auditor resided in Georgia and examined claims, and when in funds sometimes paid them or gave checks. Schmidlapp v. La Confiance Ins. Co., 71 Ga. 246. 385 1. Middlebrooks v. Ins. Co., 14 Conn. 301; Moulin v. Trenton Mut., etc., Co., 24 N. J. L. 222; Good Hope Co. v. Railway Barb-fencing Co. (N. Y.), 22 Fed. Rep. 635; Hulbert v. Ins. Co., 4 How. Pr. (N. Y.) 275; Brewster v. Railroad Co., 5 How. Pr. (N. Y.) 183; Bates v. Railroad Co., 13 How. Pr. (N. Y.) 516; Latimer v. Union Pac. R. Co., 43 Mo. 105; McNichol v. United States Merc. Agency, 74 Mo. 457. Compare Wisconsin v. Pelican Ins. Co., 127 U. S. 265. 2. Section 432 of the New York Code (d) Who are Proper Agents for Service of Process.-Statutes regulating service of process on foreign corporations frequently designate "a managing agent" as the proper person upon whom to make service, or designate certain other agents of the company for this purpose. An agent on whom service can be made must be one actually appointed by or representing the corporation as a matter of fact, and not one created by implication or construction contrary to the intention of the parties. The value, as precedents, of many of the decisions as to who are managing agents and other representatives of the corporation, within the terms of such statutes, will depend upon the provisions of the statutes themselves. In Massachusetts, it is provided by statute that foreign corporations must there appoint the commissioner of corporations its attorney, upon whom process may be sworn.2 Similar statutes as to insurance companies exist in several States. In Nebraska, it provides that personal service of the summons upon a foreign corporation may be made by delivering a copy thereof within the State to the president, secretary, or treasurer thereof. In order to make such service effectual, it is not needful that the officer served should be here in his official capacity, or engaged in the business of the corporation, or that the corporation should have any property within the State, or that the cause of action should have arisen within the State. Pope v. Terre Haute Car Mfg. Co., 87 N. Y. 137. The court observed: "The object of all service of process for the commencement of a suit or other legal proceeding is to give notice to the party proceeded against; and any service which reasonably accomplishes that end answers the requirements of natural justice and fundamental law. And what service may be deemed sufficient for that purpose is to be determined by the legislative power of the country in which the proceeding is instituted, subject only to the limitation that the service must be such as may be reasonably expected to give the notice aimed at." In Hiller v. Burlington, etc.. R. Co., 70 N. Y. 223, the cause of action was held to have arisen in New York. A director was served while temporarily in that State, and it was held to be a good service. 1. United States v. Am. Bell Tel. Co. (Ohio), 29 Fed. Rep. 18. The term "managing agent" implies the carrying on of the corporate business, or some substantial part thereof, by means of an agent who manages and conducts the same within the limits of the State, for and on account of the for eign corporation. United States v. Am. Bell Tel. Co. (Ohio), 29 Fed. Rep. 18. In Upper Miss. Transp. Co. v. Whittaker, 16 Wis. 233, it was held that the captain of a steamboat was not a managing agent." The court say: "This statute relates to an agent having a general supervision over the affairs of the corporation." See also Lake Shore, etc., R. Co. v. Hunt, 39 Mich. 470. In Reddington v. Mariposa L. & M. Co., 19 Hun (N. Y.), 405, the court say: "It is quite clear that the legislature attached importance to the term 'managing agent,' and employed it to distinguish a person who should be invested with general power, involving the exercise of judgment and discretion, from an ordinary agent and employee who acted in an inferior capacity.' In Flynn v. Hudson Riv. R. Co., 6 How. Pr. (N. Y.) 308, the court held that a "managing agent contemplated by the statute was one having "the same general supervision and control of the general interests of the corporation that are usually associated with the office of cashier or secretary The Ohio process act (5044, R. S.) classes "managing agent" with "cashier," secretary," and treasurer," and next after "president" "chief officer" of the corporation. Service on chief officer of agency in Cincinnati was held good. Am. Exp. Co. v. Johnston, 17 Ohio St. 641. or 99 66 When a foreign corporation has not designated a person on whom process may be served, the service may be on its managing agent. Thomas v. Placerville G. O. M. Co., 75 Cal. 600. 2. Massachusetts act, 1884, ch. 330. has been held that service upon a managing agent is good though he be not a resident.1 The following have been held to be agents upon whom process might be served: Managing agent of a bank; 2 superintendent and general managing agent of a railroad; 3 an insurance agent; 4 the general superintendent for the State of an express company; 5 local agent of a commercial agency; 6 railroad treasurer; local agent of a slate-quarry; attorney of record, where the agent is 1. Porter v. Railroad Co., I Neb. 15. Under Nebraska Civil Code, § 912, a summons against a corporation may be served upon its chief officer if he be found in the country. If not so found, then upon its cashier, treasurer, secretary, clerk, or managing agent; or, if none of these can be found, by copy left at the office or usual place of business of such corporation, with the person having charge thereof. This, as to corporations in general, was held to include foreign corporations, as well as section 914, which applies to foreign corporations expressly, except where there are special provisions to the contrary. Said section 914 provides for service on managing agent of foreign corporation, in case there is one in the State. For this policy is to apply the remedy, as far as possible, at the place where the injury was sustained. Chicago, B. & Q. R. Co. v. Manning (Neb. 1888), 37 N. W. 462. 2. The managing agent" of a home company, under such a statute, was held to be a person engaged in closing up the affairs of the bank corporation; was in the habit of making its semi-annual reports to the bank-comptroller; em ployed attorneys to attend to its business; and was the only person exercising a general supervision over its affairs. Carr v. Commercial Bank, 19 Wis. 272. 3. In New York, service on the superintendent and general managing agent of a foreign railroad corporation, in the possession of and using a railroad in that State, was held a good service, within section 134 of the code. Pres't, etc., of Bk. of Commerce v. Rutland & Wash. R. Co., 10 How. Pr. (N. Y.) I. 4. A local agent of an insurance company of a distant State, who solicits insurance, takes the application, receives the premium, and delivers the policy is to be regarded as the agent of the company for the purpose of receiving notice of an additional insurance, no particular notice being required in the policy. Phoenix Ins. Co. v. Spiers (Ky. 1888), 8 So. West. Rep. 453. See also Bain v. Globe Ins. Co., 9 How. Pr. (N. Y.) 448. Service on Insurance Agents under Maryland Statutes.-Maryland act, 1868 ch. 471, § 211, authorizing service on any agent of a foreign corporation, does not govern service on foreign insurance companies; for the Maryland act of 1878 establishing the State Insurance Department provided that service should be on the agent appointed by the company, in pursuance of said late act, or, in case of his death, on the insurance commissioner. Hence, service on local agent of the company, and mailing a copy of the process to the general agent authorized to receive process, in a suit against an insurance company of another State, was held not to be good service, and order of court quashing the sheriff's return was affirmed. Oland v. Agricultural Ins. Co. (Md.), 14 Atl. Rep. 669. 5. In a case where there was a general "superintendent" for the State, and two or more local agents in a certain county, one of whom was stationed at London in said county and kept an office there where he received and forwarded packages for the express company and did all the business of the company usually transacted in such receiving and forwarding offices, it was held that such London agent was "managing agent,' and that service was sufficient. can Express Co. v. Johnson, 17 Ohio St. 641. Ameri 6. Augerhofer v. Bradstreet's Co. (Tex.), 22 Fed. Rep. 305. 7. A foreign railroad corporation haying an office for convenience of stockholders and for the better management of its finances and other business, where its principal officers are to be found, and where it carries on such business as is usually carried on in the office of the president and treasurer of a railroad corporation, has a usual place of business, and under Massachusetts Stat. 1870, ch. 194, may be summoned as trustee by process served on its treasurer. Nat. Bk. of Commerce v. Huntington, 129 Mass. 444. 8. Where no agent was named to the State, nor appointed by regular act of in contempt; 1 an agent who fills that capacity in the very transaction out of which the suit arises; an agent intrusted with the management and supervision of a manufacturing company; section foreman of a railroad company; 4 railroad-train conductor. 5 2 3 The following have been held not to be proper agents for the service of process: An attorney at law who has claims to collect for a foreign corporation is not a local agent; local agent in a country town, of an insurance company, with limited authority; travelling agent; ticket agent of a railroad com 8 the directors, but one was requested by the president to look after the company's affairs as lessor of a certain slate-quarry, etc., and such person received royalties, leased houses from time to time, and returned moneys and submitted accounts to the company, it was held that he could be served with process in a suit on a mortgage respecting some of the land owned by such foreign corporation. Hagerman v. Empire Slate Co., 97 Pa. St. 534. 1. Under the practice authorized by the California code, where the agent of a foreign corporation, which is charged with contempt, wilfully conceals himself to avoid service of an order to show be made upon its cause, service may attorney of record. Eureka, etc., Co. v. Yuba County, 116 U. S. 410. 2. Pullman Co. v. Nolan (Tenn.), 22 Fed. Rep. 276; Estes v. Bedford (N. Y.), 8 Am. & Eng. Corp. Cas. 153. 3. Shackleton V. Wainwright Mfg. Co., 7 N. Y. State Rep'r, 872, citing Palmer v. Pa. Co., 35 Hun (N. Y.), 369. 4. A section foreman is a "local superintendent of repairs," on whom process against his railroad may be served in the absence of designation by the company of some person on whom service can be made. If it bears hardly on the company to have service on a section foreman remote from telegraph and post offices, let the company comply with the statute and appoint a person in an appropriate place to receive service. St. Louis, etc., R. Co. v. Deford, 38 Kan. 299. 5. Under Indiana legislation providing that, in suits for stock killed, service might be on railroad-train conductor, and a statute applicable to all suits against railroad companies said that, where the chief officer is not found in the county, service might be on its cashier, clerk, etc., or general or special agent, it was heid, in a case of loss of a mare in a well left uncovered by the company, that service was well made on a train-conductor. The court said: "We think the con ductor at least a special agent of the railroad company, and one peculiarly proper for receiving service of process; because his duties take him along the line of the road to that extent that will generally enable him daily to communicate with the chief officers of the corporation, whose duty it would be to attend to suits against it." New Albany, etc., R. Co. v. Grooms. 9 Ind. 243. See also New Alb., etc., R. Co. v. Tilton, 12 Ind. 3. 6. An attorney at law, who has claims to collect for a foreign corporation, is not a local agent' on whom process can be served. Local agent means one residing either permanently or temporarily in the State for the purpose of his agency; and does not include a mere transient agent, like a lawyer employed to collect a debt. And this is so, although the statute provides that " Any person receiving or collecting moneys within this State for or on behalf of any corporation of this or any State or govern. ment shall be deemed a local agent,' for the purpose of service." Moore v. Freeman's Nat. Bk., 92 N. Car. 590. 7. Service on a local agent in a country town, whose authority was only to receive applications for insurance and give binding receipts therefor, was held void in Louisiana, where the corporation had residing in New Orleans a general agent and a local board of directors. Weight v. Liverpool, Lond. & Globe Ins. Co., 30 La. Ann. 1186. But a company cannot avoid service by revocation of proper agent's authority on eve of suit. Such agent may, notwithstanding, be served. Michael v. Mut. Ins. Co., 10 La. Ann. 737 |
