Dowe v. Debus Mfg. Co

• Decision Date: 21 August 1934
• Docket Number: No. 23528.,23528.
• Citation: 175 S.E. 676,49 Ga.App. 412
• Parties: DOWE. v. DEBUS MFG. CO.
• Court: Georgia Court of Appeals

49 Ga.App. 412

175 S.E. 676

DOWE.

v.DEBUS MFG. CO.

No. 23528.

Court of Appeals of Georgia,

Division No. 2.

Aug. 21, 1934.

Syllabus by Editorial Staff.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Suit by Lester Dowe against the Debus Manufacturing Company. Judgment for defendant, plaintiff's certiorari was overruled by the superior court, and plaintiff brings error.

Affirmed.

Lawton Nalley, of Atlanta, for plaintiff in error.

Hendrix & Buchanan, of Atlanta, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, Presiding Judge.

1. "It is essential to the legal rendition, of a personal judgment against a foreign corporation, otherwise than by its voluntary appearance, that the corporation be doing business within the state." Vicksburg, S. & P. Ry. Co. v. De Bow, 148 Ga. 738 (1), 98 S. E. 381.

(a) The character of the activities engaged in by the foreign corporation, which are essential to give the courts of this state such jurisdiction over it, do not consist in the mere solicitation of business within this state by persons seeking and taking orders on com-missions and transmitting them to the home office for acceptance and shipment, even though the foreign corporation may lend its assistance to the local salesmen by advertising its product within the state, and may aid, train, and assist them, in increasing their efficiency in the discharge of their own activities as local salesmen, with the result that such increased efficiency may indirectly have the effect of increasing or expanding the business of the foreign corporation. But, in order for the foreign corporation to be doing business within this state in the sense which would subject it to personal judgment by the courts of this state, it must either maintain an office or place of business within the state, or else there must be a local performance on its part of its own contractual obligations to customers, otherwise than by the mere interstate shipment of goods sold by local solicitors. Southeastern Distributing Co. v. Nordyke & Marmon Co., 159 Ga. 150, 157-161, 125 S. E. 171; Smith v. Nolting First Mortgage Corp., 45 Ga. App 253 (1), 254, 164 S. E. 219; People's Tobacco Co. v. American Tobacco Co., 246 U. S. 79, 3S S. Ct. 233, 62 L. Ed. 587, Ann. Cas. 1918C, 537.

2. The Civil Code 1910, § 2258, prescribes two modes for service of process upon corporations, including foreign corporations which may be subject to suit in the state courts: (1) By serving an officer or proper agent of such corporation; or (2) by leaving the copy process at the place of transacting the usual and ordinary public business of such corporation. Either of these modes is sufficient. Both are not required. Kimsey & Dopson v. Macon Lumber Co., 136 Ga. 369 (1 [a]), 71 S. E. 675.

(a) The representative of a corporation, such as will meet the requirements of law governing service upon it by serving him personally, as distinguished from service by leaving a copy of the process at the place of transacting its usual and ordinary public business, must be an officer of the corporation or "any agent who has some sort of control or authority over some department or sphere of the corporation's business, " but not "a mere employee or servant." Medical College v. Rushing, 124 Ga. 239, 242, 52 S. E. 333, 335; Southern Bell Tel. & Teleg. Co. v. Parker, 119 Ga. 721,...