Brown v. Tennessee Coal, Iron & R. Co.

• Decision Date: 20 March 1935
• Docket Number: 744.
• Citation: 178 S.E. 858,208 N.C. 50
• Parties: BROWN v. TENNESSEE COAL, IRON & R. CO.
• Court: North Carolina Supreme Court

178 S.E. 858

208 N.C. 50

BROWN v. TENNESSEE COAL, IRON & R. CO.

No. 744.

Supreme Court of North Carolina

March 20, 1935

Appeal from Superior Court, Forsyth County; Hill, Special Judge.

Action by H. P. Brown against the Tennessee Coal, Iron & Railroad Company. From a judgment dismissing the action, plaintiff appeals.

Affirmed.

In action against foreign corporation where summons was served on Secretary of State under statute, order quashing service of summons and dismissing action held not erroneous where corporation was not doing business in state at time of service (C.S. § 1137).

This action was begun by a summons duly issued on October 21 1933, by the clerk of the superior court of Forsyth county. This summons was served by the sheriff of Wake county, N. C on October 25, 1933, on Stacey W. Wade, Secretary of State of North Carolina. under the provisions of C. S. § 1137, and duly returned showing such service. The complaint was duly filed on November 10, 1933.

It is alleged in the complaint that the plaintiff is a resident of Forsyth county, N. C., and, on information and belief, that the defendant is a corporation organized and existing under and by virtue of the laws of the state of Alabama, with its principal office and place of business in the city of Birmingham, in said state, and that said defendant is now and was at all times mentioned in the complaint, doing business in the state of North Carolina.

On the facts alleged in the complaint, the plaintiff demands judgment that he recover of the defendant large sums of money as damages for its breaches of the contracts between plaintiff and defendant as alleged in the complaint.

In apt time, a motion was made in the action on behalf of the defendant, which is in writing and is as follows:

"Now comes the defendant, Tennessee Coal, Iron & Railroad Company, by its attorneys appearing specially for the purpose of this motion only, and for no other purpose whatsoever, and moves:

1. That this Court quash, set aside and hold for nought the pretended service of summons upon said defendant, and the return of said service;

2. That this Court dismiss this action.

As grounds of this motion, the defendant says:

1. That the defendant, Tennessee Coal, Iron & Railroad Company is a corporation organized and existing under and by virtue of the laws of the State of Alabama, with its principal place of business in Birmingham, Alabama.

2. That the defendant is not now, and was not at the time of the said pretended service of summons, nor at any mentioned time prior thereto, doing business in the State of North Carolina; that it has never come into the State of North Carolina for the purpose of doing business therein; that it has no property in the State of North Carolina; that it has no qualified agent therein, upon whom service can be had, nor, as it is informed and believes, is it necessary for it to have any such agent; that it has never been licensed to do business within the State of North Carolina; that it has never complied with any of the statutes of the State of North Carolina relative to a foreign corporation doing business in North Carolina; and that it has never sought, through compliance with said statutes or any of them, to do business in the State of North Carolina.

3. That said defendant was not at the time of said pretended service found within said State of North Carolina, is not amenable to service of process within the State of North Carolina, and has not waived due service of summons herein by voluntary appearance or otherwise.

4. That ...