Barrett Mfg. Co. v. Kennedy

• Decision Date: 10 May 1913
• Citation: 131 P. 1161,73 Wash. 503
• Parties: BARRETT MFG. CO. v. KENNEDY et al.
• Court: Washington Supreme Court

131 P. 1161

73 Wash. 503

BARRETT MFG. CO. v. KENNEDY et al.

Supreme Court of Washington

May 10, 1913

Department 1. Appeal from Superior Court, King County; King Dykeman Judge.

Action by the Barrett Manufacturing Company against H. G. Kennedy and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Jas. W Reynolds, of Seattle, for appellant.

Lewis &amp Levine, of Seattle, for respondents.

GOSE J.

This action was brought by the plaintiff for the purpose of vacating five default judgments entered against it as garnishee in one of the justice courts of King county. There was a judgment in favor of the defendant, from which the plaintiff has appealed.

The appeal presents a single question, viz., the legality of the service upon which the judgments were rendered. The returns show that the several writs of garnishment were served upon the appellant, a foreign corporation, by personally delivering a true copy of the writs to 'S. M. Edwards; he being the acting manager of the garnishee.' Prior to the service of the writs, the appellant had filed its certificate with the Secretary of State, designating George S. Turner as its statutory agent, and empowering him to accept service conformably to the statute.

The first contention is that process can be served only upon the statutory agent. This court held, in Tatum v. Niagara Fire Ins. Co., 43 Wash. 373, 86 P. 660, that the statute authorizing service of process upon the statutory agent of a foreign corporation was only cumulative, and that service might be made under the general statute. It is argued that the opinion does not show that the corporation had appointed a statutory agent. The briefs, as well as the opinion, clearly show that his appointment was assumed. The following cases speak the same rule: Betterment Co. v. Reeves, 73 Kan. 107, 84 P. 560; Eagle Life Ass'n v. Redden, 121 Ala. 346, 25 So. 779; In re Curtis, 115 La. 918, 40 So. 334, 5 L. R. A. (N. S.) 298, 5 Ann. Cas. 950; Venner v. Denver Union Water Co., 40 Colo. 212, 90 P. 623, 122 Am. St. Rep. 1036; Mutual Reserve, etc., Ass'n v. Cleveland Woolen Mills, 82 F. 508, 27 C. C. A. 212; Bankers' Union v. Nobors, 36 Tex.Civ.App. 38, 81 S.W. 91.

The next contention is that Edwards was not an agent within the meaning of the statute. Our statute (Rem. & Bal. Code, § 1828) provides that writs of garnishment may be served in the same manner as a summons. Section 226 provides that a summons shall be served by delivering a copy thereof as follows: 'If the suit be against a foreign corporation or nonresident joint-stock company or association doing business within this state, to any agent, cashier or secretary thereof.'

The record shows that Turner, the statutory agent who was also the resident manager of the appellant, had gone to California; that the writs were served in the afternoon; that Turner returned to Seattle that evening after the service of the writs; that Edwards had sole charge of the appellant's warehouse in Seattle during his absence; that he shipped goods out of the warehouse as directed, and made out the shipping bills; that he received freight into the warehouse; that he checked the bills; and that he sold the appellant's goods and solicited orders for its goods at list prices. Measured by the duties which Edwards performed, he was clearly an agent, within the meaning of the statute. It is true that he was not a general agent, but the statute does not require that service in such cases shall be made upon a general or a managing agent; it suffices if it is made upon 'any agent' with representative authority. Sievers v. Dalles, etc., Nav. Co., 24 Wash. 302, 64 P. 539; Tatum v. Niagara Ins. Co., supra; Womach v. Case Threshing Machine Co., 62 Wash. 661, 114 P. 509; Lee v. Fidelity S. & T. Co., 51 Wash. 208, 98 P. 658; Jenkins v. Penn Bridge Co., 73 S.C. 526, 53 S.E. 991; Norfolk, etc., v. Cottrell, 83 Va. 512, 3 S.E. 123; Moinet v. Burnham, etc., 143 Mich. 489, 106 N.W. 1126; Arnold v. Huber Mfg. Co., 166 Mich. 190, 131 N.W. 537.

In the Sievers Case summons was served upon both the purser and wharfinger of the defendant corporation, a navigation company. In holding the service sufficient to confer jurisdiction, the court said: 'The corporation received and discharged freight and passengers at Vancouver, and this business was in charge of the purser, who was certainly one of the company's agents looking after this with other business of the company. The appellant's steamers regularly landed at the wharf in Vancouver, and regularly discharged and received passengers and freight. To that extent it was certainly doing business in the state, and the wharf was an office for the transaction of such business. Paragraph 9 of section 4875, which provides the manner of service of summons, provides that, if the suit be against a foreign corporation or nonresident joint-stock company or association doing business within ...