Merchants Transfer & Warehouse Co. v. Ragan, 3657
| Citation | 170 F.2d 987 |
| Decision Date | 17 December 1948 |
| Docket Number | No. 3657,3658.,3657 |
| Parties | MERCHANTS TRANSFER & WAREHOUSE CO. v. RAGAN. RAGAN v. MERCHANTS TRANSFER & WAREHOUSE CO., Inc. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Douglas Hudson, of Fort Scott, Kan. (Howard Hudson and Douglas G. Hudson, both of Fort Scott, Kan., on the brief), for Merchants' Transfer & Warehouse Co., Inc.
Cornelius Roach, of Kansas City, Mo. (Daniel L. Brenner and Wilfred Wimmell, both of Kansas City, Mo., and A. J. Herrod, of Kansas City, Kan., on the brief), for Julius Ranny Ragan.
Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.
In Number 3658, Julius Ranny Ragan, plaintiff below, has appealed from an order of the trial court quashing the original service of summons, and in Number 3657, the defendant, the Merchants Transfer and Warehouse Company, has appealed from the order of the trial court denying its motion for summary judgment. The parties will be referred to respectively as "Ragan" and "the company".
The essential facts, briefly stated, are these. Ragan instituted an action for damages against the company in the District Court of the United States for the District of Kansas. The automobile collision on which the action was predicated occurred October 1, 1943. Ragan's complaint was filed September 7, 1945. A summons was issued September 7, 1945, and was served by a Deputy United States Marshal on September 22, 1945. The Marshal's return of the service of summons is as follows:
A motion to quash this service of summons was filed by the company on October 12, 1945. While this motion was pending and on December 28, 1945, an alias summons was issued. On December 28, 1945, the same Deputy United States Marshal made the following return of service of this summons:
A motion was filed by the company to quash the service of this alias summons. The two motions were heard and disposed of at the same time. At the hearing, the trial court permitted an amendment to the Marshal's return of service of the original summons to the effect that at the time of the service of the original summons, as set out in the return, the Deputy Marshal inquired of Trent concerning the officers of the corporation; that Trent replied they were a couple of aged women whose addresses he was not able to give; that the Deputy Marshal did not know the address of Mrs. G. L. Sterling at that time, and that thereupon the Deputy Marshal left the summons with Trent for the company. After permitting this amendment, the trial court sustained the motion to quash the service of the original summons and overruled the like motion addressed to the alias summons. Thereafter the company filed a motion for summary judgment on the ground that the cause of action, if any, was barred by the applicable statute of limitations. This motion was overruled. Thereafter the cause was tried to a jury resulting in a verdict for Ragan. A motion for a new trial was overruled and judgment was entered on the verdict. This appeal followed.
In view of the conclusions we have reached on the two questions outlined above, other issues which are raised by the appeal become immaterial and further reference to such issues or the evidence relating thereto will be omitted from the opinion.
As outlined above, the only question presented by this appeal is whether the trial court erred in quashing the service of the original summons. The Kansas Statute, Sec. 60-2518, 1943 Supplement to the General Statutes of Kansas, 1935, relating to service of corporations, provides as follows:
"A summons against a corporation may be served upon the president, resident agent, mayor, chairman of the board of directors, or trustees, or other chief officer; or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk or managing agent; or if none of the aforesaid officers can be found by a copy left at the office or usual place of business of such corporation, with the person having charge thereof, or by the delivery of a copy at the registered office of the corporation, or to the registered agent of the corporation."
Trent was not an officer of the corporation and was not its registered agent. For the purpose of this opinion, it will be assumed that 1201 North Broadway, Pittsburg, Kansas, where this service was made, was the resident office of the company.
It will be observed that the statute sets out in sequence those upon whom service shall be made. It is only if none of those can be found that a copy may be left at the registered office. It is incumbent upon the officer making service to exercise diligence in seeking to ascertain whether those upon whom service must first be made can be found before he serves those subsequent in the order of service.
Ohio has a statute relating to service on corporations, which, so far as necessary to the question under consideration, is not materially different from the Kansas Statute. This statute is set out in Sunday Creek Coal Co. v. West, 192 N.E. 284, 286. Concerning the requirements to constitute valid service under the third provision thereof,1 the court said:
"Before a sheriff may resort to the manner of service provided in the third provision of this statute he should make reasonable effort to ascertain if an officer `can be found' in the county upon whom service may be made."
In the early case of Palmetto Town Company v. Rucker, 1 Kan. 561, the Kansas Supreme Court clearly indicates that service must be made in the order of sequence set out in the statute. The court said:
In the syllabus of the case, the court states:
"When a summons is served on the secretary of a corporation, the return should state that the president or other chief officer was absent from the county, or could not be found."
While the Palmetto case does not in so many words say that the officer making service must exercise due diligence in ascertaining whether those who must first be served can be found before service is made upon those subsequently named in the statute, the language of the court that the return must state that such persons "could not be found" implies the exercise of due diligence in ascertaining that fact before substitute service is made.2
The return of the Deputy Marshal, as amended by the findings of the trial court, merely shows that none of the officers of the company were at this resident address; that the serving officer inquired of Trent about the officers of the corporation and was informed that they were a couple of aged women whose address Trent was not able to give. The return does not state that the officers could not be found or that any effort was made to find them, other than the inquiry about the officers' address to Trent. The conclusion is inescapable that there was a lack of due diligence in seeking to ascertain whether those upon whom service must be made, could be found, before service was attempted by leaving a copy of the summons at the residence office.
The only question in this appeal is whether the action was barred by the applicable Kansas statute of limitations. Under Section 60-306, Gen. Statutes for Kansas, 1935, an action such as this must be brought within two years after it has accrued.
Section 60-301, Gen. Statutes for Kansas, 1935, provides that:
"A civil action may be commenced in a court of record by filing in the office of the clerk of the proper court a petition and causing a summons to be issued thereon."
Rule 3, Federal Rules of Civil Procedure, 28 U.S.C.A., provides:
"A civil action is commenced by filing a complaint with the court."
Rule 4, Federal Rules of Civil Procedure, provides:
It is quite well settled that the manner and method to be followed in commencing actions is procedural and is controlled by the laws of the forum in which the action is filed.3
But in any event, the filing of the complaint on September 4, 1945, and the issuance...
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