Clinard v. White

• Decision Date: 19 November 1901
• Citation: 39 S.E. 960,129 N.C. 250
• Parties: CLINARD v. WHITE et al.
• Court: North Carolina Supreme Court

39 S.E. 960

129 N.C. 250

CLINARD v. WHITE et al.

Supreme Court of North Carolina

November 19, 1901

Appeal from superior court, Forsyth county; Starbuck, Judge.

Action by A. S. Clinard, administrator of W. A. Clinard, deceased against J. G. White & Co. From an order refusing to dismiss the complaint, defendants appeal. Appeal dismissed.

Watson Buxton & Watson, for appellants.

Jones & Patterson, for appellee.

COOK J.

The plaintiff in this action is a resident of Forsyth county, in this state, and the cause of action arose in said county. The defendant is a foreign corporation. At the time of the service of the summons defendant company was engaged in overhauling, extending, and putting in good condition the electric lights and street car plant of Winston-Salem, in said county. The summons was served upon one W. S. Turner and defendant company entered a special appearance, and moved to dismiss the action upon the ground that he (Turner) was not such an agent as is contemplated by the statute regulating the service of summons upon nonresident corporations as would bring it into court. His honor overruled the motion, and defendant company appealed.

The affidavits show that Turner was not the president, secretary cashier, treasurer, or a director of the company. They are somewhat conflicting as to his authority to receive or collect moneys for the company, but it fully appears without contradiction that he had an oversight of all the work, and had general charge of the employes of the company, and acted as its superintendent of the construction. Whether this constituted him its "managing" agent, within the meaning of section 217, subsec. 1, of the Code, is the question presented for our determination. It appearing that the plaintiff resides in the state, and also that the cause of action arose herein, service upon a foreign corporation is to be made in the same manner as upon resident corporations to wit, by delivering a copy of the summons to the president or other head of the corporation, secretary, cashier, treasurer, director, managing or local agent; and a local agent is defined by the said section to mean a person receiving or collecting moneys within the state for or on behalf of the corporation. No statutory definition being given to "managing" agent, we must give it that meaning generally recognized by lexicographers. To "manage" (the verb from which the adjective "managing" is...