170 F.2d 987 (10th Cir. 1948), 3657, Merchants Transfer & Warehouse Co. v. Ragan

Docket Nº:3657, 3658.
Citation:170 F.2d 987
Case Date:November 09, 1948
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 987

170 F.2d 987 (10th Cir. 1948)







Nos. 3657, 3658.

United States Court of Appeals, Tenth Circuit.

November 9, 1948

Rehearing Denied Dec. 17, 1948.

Page 988

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.

HUXMAN, Circuit Judge.

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

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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:

'I hereby certify and return, that on the 22nd day of Sept., 1945, I received the within summons at Wichita, Kansas and served The Merchants Transfer and Warehouse Company by delivering a true copy thereof to Clarence M. Trent personally.

'Served Clarence M. Trent personally at Pittsburgh, Kansas on Sept. 22, 1945.

'At the same time and in like manner I served each of the within named with a copy of the Petition for Damages filed in this case.

'W. M. Lindsay. 'United States Marshal.

'By Repps H. Campbell, 'Deputy U.S. Marshal.

'Filed September 27, 1945.'

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:

'I hereby certify and return, that on the 28th day of Dec., 1945, I received the within summons at Ft. Scott, Kansas and served The Merchants Transfer and Warehouse Company, Inc. a Corporation by delivering a true copy thereof to Mrs. G.L. Sterling personally, she being the Secretary and Treasurer of the Merchants Transfer Company, Inc. a Corporation at the hour of 5:45 P.M. at 503 South Broadway Street at Pittsburg, Kansas on December 28, 1945.

'At the same time and in like manner I served the within named with a copy of the complaint filed in this case.

'W.M. Lindsay, 'United States Marshal.

'By Repps H. Campbell, 'Deputy U.S. Marshal.

'Filed January 7, 1946.'

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.

Number 3658

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

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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:

'It is contended that the return of the officer who served the summons should have shown that the president, or other chief officer, could not be found in the county, to render the service, as made on the secretary, legal. This position of practice we consider is the proper one, and should be observed, in order to a full compliance with the statute. In the absence of the president, or other chief officer, a service on the secretary would be, in law, good.'

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...

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