Coast Land Co. v. Oregon P. Colonization Co.

• Decision Date: 21 March 1904
• Citation: 75 P. 884,44 Or. 483
• Parties: COAST LAND CO. v. OREGON PAC. COLONIZATION CO. et al.
• Court: Oregon Supreme Court

75 P. 884

44 Or. 483

COAST LAND CO. v. OREGON PAC. COLONIZATION CO. et al.

Supreme Court of Oregon

March 21, 1904

Appeal from Circuit Court, Benton County; J.W. Hamilton, Judge.

Action by the Coast Land & Live Stock Company against the Oregon Pacific Colonization Company and others. From an order overruling a motion to set aside a decree and to quash a return of summons, defendants appeal. Affirmed.

E.C. Bronaugh and George F. Martin, for appellants.

J.K Weatherford, for respondent.

BEAN J.

This is an appeal from an order overruling a motion to set aside a decree and to quash a return on a summons. The plaintiff is an Oregon corporation, with its principal office at Albany and the defendant is a Minnesota corporation. On June 11 1902, S.F. Cook obtained from the plaintiff and the Oregon Agricultural Company an option in the name of F.A. Brown for the purchase of about 55,000 acres of land in Benton, Polk and Lincoln counties at the rate of $1.75 an acre. By the terms of the agreement Brown was to pay $1,000 cash and $5,000 within 60 days, upon the payment of which the land was to be deeded to him, the grantors taking notes for the deferred payments, secured by a mortgage on the property. On July 3d Brown assigned his option to George H. Selover, of Minneapolis, Minn., and on July 28th Selover and S.H. Bates, of Minnesota, and Cook organized the defendant corporation, for the purpose of taking over the Brown option and handling and disposing of the property, it being agreed that Cook should receive one-fourth of the profits of the venture. As appears from the articles of incorporation, the only parties composing the company were Selover, Cook, and Bates, who occupied the offices of president, vice president, and secretary and treasurer, respectively, which offices they were to hold for one year, or until the next annual meeting of the corporation, which was scheduled to be held in Minneapolis in the following January. In August, 1902, the defendant complied with the terms of the option, paid the balance of the first payment therein stipulated, and the plaintiff and its associate company deeded to it the land as agreed upon; the plaintiff taking notes of the defendant and Selover and Cook for the deferred payments secured by a mortgage on the property. Default was made in the payment of these notes when due, and on March 11, 1903, the plaintiff commenced a suit in the circuit court for Benton county to foreclose the mortgage, making service on Cook in that county, who is stated in the return of the sheriff to be the "vice president and managing agent" of the defendant corporation. No appearance was made for the defendant, and on March 23d a judgment and decree was taken against it by default. On July 8, 1903, after execution had been issued and the property advertised for sale, the defendant, without any showing of merits, appeared specially, and moved to set aside the decree and to quash the return on the ground that Cook was not at the time the service was made on him either vice president or managing agent of the defendant. This motion was denied, and defendant appeals.

From the minutes of the annual meeting of the defendant corporation and of its board of directors it appears that prior to the commencement of this suit Cook's term as director and vice president had expired, and his successor had been elected and qualified, so that he was not the vice president at the time the summons was served upon him. This is, however, immaterial, if he was in fact the managing agent of the defendant. The statute provides that summons shall be served upon a private corporation by delivering a copy thereof, together with a copy of the complaint, "to the president or other head of the corporation, secretary, cashier or managing agent." B. & C. Comp. § 55. Under this statute and the proceedings had in this case substantially two questions are presented for decision: (1) Whether Cook was the managing agent of the defendant, within the meaning of the statute, at the time the summons was served upon him; and (2) whether the defendant was guilty of such laches or delay in moving against the service as will bar the relief sought.

The contention for the defendant is that Cook was not an officer or agent of the company, and had no connection therewith except as a stockholder, and therefore the service was void. For the plaintiff it is contended that Cook was in fact the managing agent of the defendant in Oregon, but, if he was not, the defendant's conduct and laches has been such as to prevent it from objecting to the service or questioning the validity of the decree based thereon. Numerous ex parte affidavits have been filed in support of the contentions of the respective parties. These affidavits are lengthy, in many respects conflicting, and afford unsatisfactory evidence upon which to determine a disputed question of fact. We shall not attempt to note their contents in detail, but shall state generally our conclusions. Some important and material facts in the case, however, are either undisputed or so clearly shown as to be beyond controversy. The defendant was organized for the sole purpose of taking title to and disposing of the land described in the option obtained by Cook from the plaintiff, and it had no other business. Selover, Bates, and Cook composed the corporation the two former residing in Minnesota and the latter in Oregon. At the time the company was organized and the land purchased it was understood that Cook should act as the defendant's agent in Oregon for the sale of the land, and from the organization of the company up to the time of the service of the summons he was endeavoring to effect a sale of the property. Bates and Selover say in their affidavits that it was the understanding that Cook was to act as the agent only in...