Heath v. Kresky Mfg. Co.

• Decision Date: 04 May 1955
• Docket Number: No. 521,521
• Parties: M. Lee HEATH v. KRESKY MANUFACTURING COMPANY, Inc., a corporation, and Southern Appliances, Inc., a corporation.
• Court: North Carolina Supreme Court

Page 300

87 S.E.2d 300

242 N.C. 215

M. Lee HEATH v. KRESKY MANUFACTURING COMPANY, Inc., a corporation, and Southern Appliances, Inc., a corporation.

No. 521.

Supreme Court of North Carolina.

May 4, 1955.

Warren C. Stack, David J. Craig, Jr., Charlotte, for plaintiff, appellee.

McDougle, Ervin, Horack & Snepp, Benj. S. Horack, Charlotte, for defendant, appellant.

HIGGINS, Justice.

The defendant Kresky Manufacturing Company, Inc., excepted to the action of the court (1) in refusing to find facts as requested, (2) in find facts as heretofore set out, and (3) in entering judgment holding the service of process valid. The exceptions neither point out which of the findings made, or refused, are objected to, nor designate what the objection is. Such exceptions, therefore, are insufficient to bring up for review either the findings of fact or the evidence upon which they are based. Rader v. Queen City Coach Co., 225 N.C. 537, 35 S.E.2d 609; Efird v. Smith, 208 N.C. 394, 180 S.E. 581; In re Will of Beard, 202 N.C. 661, 163 S.E. 748. The exception to the judgment, however, does raise this question of law: Are the findings of fact made by the court sufficient to support the judgment? Wilson v. City of Charlotte, 206 N.C. 856, 175 S.E. 306; Morganton Manufacturing & Trading Co. v. Foy-Seawell Lumber Co., 178 N.C. 571, 101 S.E. 214.

The findings of fact in summary are: The defendant is a California corporation engaged in the manufacture of heating equipment which it sells to local distributors, including the co-defendant. The Sheriff of Mecklenburg County served, or attempted to serve process on the defendant Kresky Manufacturing Company, Inc., by delivering copies to W. T. Simmons as agent for defendant. Simmons, a resident of Mecklenburg County, was employed at the time as a sales and factory representative and, through him, the defendant was present and doing business in North Carolina. At the time of service of process Simmons was the managing or local agent "and would reasonably be expected to give his principal notice of the service of process upon him."

While this Court cannot question the facts found, it is not bound by the conclusions or inferences the trial court draws from them. The crucial findings in this case are that Simmons is a resident of Charlotte and at the time of the service was employed by the defendant as a sales and factor representative. The trial court then concludes that, through him, the defendant was present and doing business in this State. The court further concludes that he was a managing or local agent. The findings fail to disclose what Simmons did or was authorized to do as sales and factory representative, what his duties were, or what he did to carry them out. This finding fails to qualify him as a managing or local agent, and fails to show that he was authorized to, or did do any business for appellant in this State. " It is not the descriptive name employed, but the nature of the business and the extent of the authority given and exercised which is determinative". Whitehurst v. Kerr, 153 N.C. 76, 68 S.E. 913, 914. In these important particulars the findings are silent.

Before a foreign corporation can be subjected to the jurisdiction of our State court, two requirements must be...