Cape Fear Rys., Inc. v. Cobb

• Decision Date: 28 October 1925
• Docket Number: 299.
• Citation: 129 S.E. 828,190 N.C. 375
• Parties: CAPE FEAR RYS., INC., v. COBB ET AL.
• Court: North Carolina Supreme Court

129 S.E. 828

190 N.C. 375

CAPE FEAR RYS., INC., v. COBB ET AL.

No. 299.

Supreme Court of North Carolina

October 28, 1925

Appeal from Superior Court, Cumberland County; Grady, Judge.

Action by the Cape Fear Railways, Inc., against Marion Cobb, the Four Wheel Drive Auto Company, and another. From order overruling motion to dismiss action as to the auto company it appeals. Affirmed.

Process against foreign corporation may be served on secretary of state, if its state distributor is not its "local agent."--

Civil action to recover damages for false warranty, breach of contract, etc., in connection with certain gasoline railway equipment purchased by plaintiff from the appealing defendant.

In apt time the Four Wheel Drive Auto Company, through counsel entered a special appearance, and moved to dismiss the action as to it for want of jurisdiction for that it had not been brought into court by any proper service of summons.

From the overruling of this motion the said defendant noted an exception, and appealed.

Manning & Manning, of Raleigh, for appellant.

Cansler & Cansler, of Charlotte, and Dye & Clark, of Fayetteville for appellee.

STACY C.J.

The plaintiff, in limine, moved to dismiss the appeal as fragmentary in that it is from a refusal to dismiss the action for defective service of process, and relies upon the following cases as controlling authorities for its position Com'rs v. Scales, 171 N.C. 527, 88 S.E. 868; Clements v. R. R., 179 N.C. 225, 102 S.E. 399; Capps v. R. R., 182 N.C. 758, 108 S.E. 300.

Plaintiff's motion must be denied. The appeal, it will be noted, is from an order overruling a motion to dismiss, not upon the ground of irregular or defective service of summons, but for an alleged failure of any valid service of process at all, resulting in a want of jurisdiction over the defendant. Motor Co. v. Reaves, 184 N.C. 260, 114 S.E. 175. Appeals from similar rulings were entertained in Lunceford v. Accident Ass'n (N. C.) 129 S.E. 805, and Accident Co. v. Davis, 213 U.S. 245, 29 S.Ct. 445, 53 L.Ed. 782. The cases cited by plaintiff are not at variance with this position.

The appeal presents the single question as to whether the Four Wheel Drive Auto Company, a foreign corporation, with its principal place of business at Clintonville, Wis., has been brought into the superior court of Cumberland county by any valid service of process. This was attempted in four ways: (1) By service of summons on Marian Cobb and Howell Cobb, trading as Raleigh F. W. D. Sales Company, general agents of the Four Wheel Drive Auto Company. C. S. 483; Whitehurst v. Kerr, 153 N.C. 76, 68 S.E. 913. (2) By service of summons on George H. Irish, agent of the Four Wheel Drive Auto Company. (3) By warrant of attachment on funds in the hands of the Page Trust Company, trustee, it being alleged that such funds were the property of the Four Wheel Drive Auto Company, and by service of summons by publication. Jenette v. Hovey, 182 N.C. 30, 108 S.E. 301. (4) By service of summons on W. N. Everett, secretary of state, and having him mail a true copy to the president, secretary, or other officer of the corporation, it being alleged that the Four Wheel Drive Auto Company is a foreign corporation, doing business in North Carolina without complying with the provision of C. S. 1137, requiring the presence of a process officer or agent in this state. Lunceford v. Accident Ass'n, supra.

We think it is unnecessary to consider more than the first method as above set out. It is provided by C. S. 483, that in an action against a foreign corporation, brought by a resident of this state, service of summons may be had by delivering copy to the "managing or local agent thereof." And any person receiving or collecting money in this state for a corporation is a local agent for the purpose of this section. It has been held that this authority to receive money is not the only test of a local agent upon whom service of process could be made. This language was not intended to limit the service to such class of agents, but rather to extend the word "agent" to embrace them. The authority to receive money, of itself, makes one a local agent for the purpose of the statute, but this is not the exclusive test of agency. Copland v. Tel. Co., 136 N.C. 12, 48 S.E. 501.

The defendant offers an affidavit of Marion Cobb in which he deposes and says:

"That he is manager of the Raleigh F. W. D. Sales Company; that the said Raleigh F. W. D. Sales

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