Cunningham Com'n Co. v. Rorer Mill & Elevator Co.

• Decision Date: 09 November 1909
• Citation: 105 P. 676,25 Okla. 133,1909 OK 268
• Parties: CUNNINGHAM COMMISSION CO. v. RORER MILL & ELEVATOR CO.
• Court: Oklahoma Supreme Court

105 P. 676

25 Okla. 133, 1909 OK 268

CUNNINGHAM COMMISSION CO. v. RORER MILL & ELEVATOR CO.

Supreme Court of Oklahoma

November 9, 1909

Syllabus by the Court.

Section 70, art. 6, c. 66, par. 4268, Wilson's Rev. & Ann. St 1903, provides, in substance, that service of a summons against a corporation may be made upon its secretary only in the event its president, etc., or other chief officer is not found in the county. A summons in error was served upon the secretary of a corporation defendant in error without a showing that the president, etc., or other chief officer was not to be found in the county, and when the president was in fact within the county. Held, a motion to quash the service of summons in error should be sustained.

Error from District Court, Pottawatomie County; A. H. Huston Judge.

Action between the Cunningham Commission Company and the Rorer Mill & Elevator Company. From a judgment for the latter, the former brings error. On motion to dismiss. Granted.

Biggers & Lydick, for plaintiff in error.

B. B Blakeney, for defendant in error.

DUNN J.

The motion for new trial in the above-entitled cause was overruled and judgment entered on the verdict on June 17 1908. June 16, 1909, the petition in error and case-made were filed in this court along with a præcipe for summons. Summons was issued and served upon the secretary of the Rorer Mill & Elevator Company, a corporation, which appears as defendant in error herein. September 16, 1909, counsel for defendant in error entered their special appearance and filed a motion to set aside the service and quash the summons issued, for the reason that C. L. Rorer, on whom the same was served, was the secretary of the corporation defendant in error, and not the president, chairman of the board of directors, trustee, or other chief officer, and that John Rorer was the president of the said defendant corporation, and was in the city of Shawnee, and could have been found therein, and was the chief officer of the said Rorer Mill & Elevator Company. This motion is supported by the affidavits of both C. L. Rorer and John Rorer, setting out the above facts, and that said John Rorer was openly and notoriously, continuously for 20 days from and after the 11th day of June, 1909, within the city of Shawnee, and that on the day of the attempted service of summons in this case he met the sheriff of the county and conversed with him concerning the service of...