Beebe v. George H. Beebe Co.

• Decision Date: 07 April 1900
• Parties: BEEBE v. GEORGE H. BEEBE CO.
• Court: New Jersey Supreme Court

46 A. 168

64 N.J.L. 497

BEEBE

v. GEORGE H. BEEBE CO.

Supreme Court of New Jersey.

April 7, 1900.

(Syllabus by the Court.)

Action by Julia B. Beebe against the George H. Beebe Company. Judgment for plaintiff. Application by receiver of defendant to set aside a judgment. Rule discharged.

Argued June term, 1899, before DEPUE, GUMMERE, and LUDLOW, JJ.

Philemon Woodruff, for plaintiff. E. A. S. Man, for the rule.

GUMMERE, J.This is an application made by the receiver of the defendant corporation (which is insolvent) to set aside a Judgment entered against it by default under conditions which, as the receiver argues, renders it void. It is not disputed that the debt which underlies the judgment was a just and legal one, due and owing from the defendant to the plaintiff at the time of the institution of this suit its alleged invalidity rests entirely upon errors of procedure. The first of these errors is said to have arisen in the method by which it was attempted to bring the defendant into court. There was no actual service of process upon the corporation, but, instead, service was acknowledged on its behalf by Mr. Stevens, an attorney of this court, who was retained by the company's president to represent it in this suit. It is contended that this action of Mr. Stevens did not confer upon this court jurisdiction over the person of the defendant, because under our statute (Corporation Act § 87) a corporation can only be brought into court by actual service of process upon it; and further, because authority to defend a suit brought against a corporation can only be conferred on an attorney by the action of its board of directors. An examination of the statutory provision referred to discloses that it will not support this contention of the receiver. It merely directs how service of process shall be made upon a corporation. It does not, either expressly or by implication, prohibit a corporation from submitting itself to the jurisdiction of the court in which it is sued by voluntarily appearing to the suit, or by acknowledging the service of process. The common-law practice in that respect remains unaltered by the statute. The suggestion that it requires a resolution of the board of directors to authorize an attorney to represent a corporation in our courts is equally unsubstantial. The president, as the chief executive officer of a corporation, has authority, virtute officii, to take all steps necessary for the defense of his company in litigations in which it may be involved, including the employment of an attorney for the purpose. Not even a suggestion to the contrary can be found in the books. 17 Am. & Eng. Enc. Law, p. 131, and cases cited.

It is next objected to the validity of the judgment that the year was omitted in setting forth the return day in the body of the summons. The writ was issued on the 30th of September, 1897. The return day was stated therein to be the "seventh day of October." The failure to insert the year in stating the return day is a mere technical irregularity, which this court would have at once corrected by the proper amendment, if objection on that ground had been made upon the return of the writ it is too late to take advantage of such an irregularity after the actual entry of judgment

The principal ground upon which the receiver rests his application to vacate this Judgment is that the summons in the case, instead of being returned into court, and filed in the clerk's office on its return day, was kept off the files for three months thereafter; that a like period of time after the return day was permitted to elapse before the plaintiff filed her declaration, although a copy of that pleading was served upon the defendant's attorney at the time of his acknowledgment of service of process; and that the judgment in the case was entered upon the same day upon which the declaration was filed. The retention of the summons and declaration from the files for the period mentioned was, at the request of the defendant, for the purpose of preventing its credit from being...