Beard v. White, Green & Addison Associates, Inc.
| Decision Date | 09 March 1959 |
| Docket Number | No. 8865,8865 |
| Citation | 336 P.2d 125,8 Utah 2d 423 |
| Parties | d 423 W. L. BEARD, Eidon L. Sutherland, and Vernon Lehr, Plaintiffs and Respondents, v. WHITE, GREEN AND ADDISON ASSOCIATES, INC., a corporation, Defendant and Appellant, E. B. Yakes, Defendant and Respondent. |
| Court | Utah Supreme Court |
Greenwood & Swan, Salt Lake City, for appellant.
Henry Ruggeri, Price, Adams, Peterson & Anderson, Monticello, for respondent.
Defendant White, Green and Addison Associates, Inc. appeals from the trial court's refusal to quash the service of two separate summonses, and to set aside a judgment cancelling defendant's lease of some mining claims and quieting title to such claims in defendant and cross-complainant Yakes, one of the respondents here. The question presented is whether the evidence requires a holding as a matter of law that neither summons was served on an authorized agent under Rule 4(e)(4) of Utah Rules of Civil Procedure. 1
Under that rule the person served must be more than a mere employee. He must be in charge of some of its property, operations, business activities, office, place of business or in some manner be responsible for or have control over its affairs.
The service of plaintiffs' summons was made in Denver, and the service of the cross-complainant's summons was made on the mining claim in Utah. The evidence as to the authority of the person served in Denver is practically nil. It is considerably stronger as to the person served in Utah, and the judgment is based on that service so we will consider only the evidence regarding that service.
The only evidence that the person served was a proper person is the testimony of the officer who made the service, and an attorney who accompanied him, to the effect that the summons was served on a person named Bottomley, who stated that he was the foreman in charge. Bottomley testified that he made no such statement, and that he was not the foreman for the defendant corporation. Mr. Miller testified that he (Miller) was the foreman or superintendant in charge of the camp where the service was made in Utah, and that he had met the sheriff and the deputy who made such service and had been introduced to them as such foreman by White, the president of the corporation. Mr. White confirmed the testimony of the other witnesses as to the capacity of Bottomley and Miller, and that he had prior to the service introduced Miller as the superintendent to the sheriff and his deputy.
The extrajudicial statement of a purported agent as to his agency standing by itself would not be very satisfactory evidence. 2 It amounts to a hearsay statement by persons who do not claim to know whether it was true or not. Because of the nature of business carried on by modern companies and corporations, it may have some probative value, and is therefore admissible, but it is, of course, always subject to explanation. It is usually...
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Gibbons & Reed Co. v. Standard Accident Insurance Co.
...(aside from the effect of provisions of the insurance code). Cases cited to the contrary, such as Beard v. White, Green and Addison Associates, Inc., 1959, 8 Utah 2d 423, 336 P.2d 125, and McGriff v. Charles Antell Inc., 1953, 123 Utah 166, 256 P.2d 703, are not in point, although in princi......
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Weber Cnty. v. Trece
...unincorporated association is inadequate under rule 4 to effectuate service on the organization. See Beard v. White, Green & Addison Assocs., Inc. 8 Utah 2d 423, 336 P.2d 125, 126 (1959) (“Under [rule 4] the person served must be more than a mere employee.”). As such, there was no valid ser......