Cunningham v. Southern Express Co.
| Decision Date | 30 June 1872 |
| Citation | 67 N.C. 425 |
| Court | North Carolina Supreme Court |
| Parties | D. A. W. CUNNINGHAM, by her next friend S. B. ALEXANDER v. SOUTHERN EXPRESS COMPANY. |
In an action against a foreign corporation, where the plaintiff resides in this State, or when the corporation has property in the State, or when the cause of action arose therein, service of a copy of the summons upon the general or managing agent is sufficient; but where neither one of the above conditions exists, service must be made upon some one of the principal offieers.
Motion to dismiss a suit, heard before Henry, J., at a Special Term of the Superior Court of MECKLENBURG.
A summons in a civil action, to enforce a lien on real estate, was issued in favor of the plaintiff, who was a resident of this State, against the Southern Express Company, a foreign corporation, and one Cunningham, and made returnable to Fall Term, 1869, of Mecklenburg Superior Court.
The summons was placed in the hands of the sheriff, who made the following return: At the return term, plaintiff filed a complaint, setting forth the cause of action, and “J. H. Wilson, Esq., marked his name on the docket as counsel for the defendant, the Southern Express Company.” The cause was continued to the special term, January 1872, when the defendant's counsel moved to dismiss, for want of service on the Southern Express Company. It appeared that the defendant owned property in this State. The motion was overruled, and defendant appealed.
Jones & Johnston, for plaintiff .
J. H. Wilson, for defendant .
The return on the summons is, “Executed by delivering a copy of within summons to Wm. P. Hill, agent for Southern Express Company.” The defendant, it appears from the complaint, is a foreign corporation, the plaintiff is a resident of this State, the cause of action arose here, and it respects property within this State in possession of the corporation. The question of the sufficiency of the service depends on the construction of Sec. 82, C. C. P., which reads as follows: “The summons shall be served by delivering a copy thereof as follows:
1. If a suit be against a corporation, to the president, or other head of the corporation, secretary, cashier, treasurer, a directing or managing agent thereof; but such service [that is, by delivery of a copy of the summons] can be made in respect to a foreign corporation, only when it has property within the State, or the cause of action arose therein, or where the plaintiff resides in the State, or where such service can be...
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Steele v. Western Union Telegraph Co.
...agent of the defendant, such as president, treasurer, or secretary. Jester v. Steam Packet Co., 131 N.C. 54, 42 S.E. 447; Cunningham v. So. Express Co., 67 N.C. 425; Bagdon v. P. & R. Coal & Iron Co., 217 N.Y. 432, N.E. 1075, L. R. A. 1916F, 407, Ann. Cas. 1918A, 389; Annotation, 30 A. L. R......
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...of process upon a foreign corporation, have heretofore been outlined and discussed by this court in a number of cases. Cunningham v. Express Co., 67 N.C. 425; Higgs Co. v. Sperry Co., 139 N.C. 299, 51 S.E. 1020; Tinker v. Rice Motors, Inc., 198 N.C. 73, 150 S.E. 701; Steele v. Telegraph Co.......
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Lambert v. Schell, 317
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Rush v. Foos Mfg. Co.
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