Hester v. Rasin Fertilizer Co

• Decision Date: 06 January 1891
• Citation: 12 S.E. 563,33 S.C. 609
• Parties: Hester . v. Rasin Fertilizer Co. et al.
• Court: South Carolina Supreme Court

12 S.E. 563

33 S.C. 609

Hester .

v.Rasin Fertilizer Co. et al.

Supreme Court of South Carolina.

Jan. 6, 1891.

Service or Process—Foreign Corporations.

Code Civil Proc. S. C. § 155, as amended by Act S. C. 1887, (19 St. 885,) provides that service can be made on a foreign corporation "only when it has property within this state, or the cause of action arose therein, or where such service shall be made in this state personally upon the president * * * or any resident agent thereof. " Held, on motion to set aside service made upon one who was not an officer or director, but who was alleged to be a resident agent, that whether he was a resident agent was a question of fact for the trial court.

Appeal from general sessions circuit court of Spartanburg county; Izlar, Judge.

J. K. Jennings and Nicholls & Moore, for appellant.

McIver, J. The only question raised by this appeal is whether there was error on the part of his honor, Judge Izlar, in granting a motion to set aside the services of the summons so far as it relates to the Rasin Fertilizer Company. It is conceded that the company is a foreign corporation, and the mode of service upon such a body is prescribed by section 155 of the Code of Procedure, as amended by the act of 1887, (19 St. 835.) That section, or so much of it as relates to this matter, now reads as follows: "The summons shall be served by delivering a copy thereof as follows: (1) If the suit be against a corporation, to the president or other head of the corporation, secretary, cashier, treasurer, a director or agent thereof; but such service can be made in respect to a foreign corporation only when it has property within this state, or the cause of action arose therein, or where such service shall be made in this state personally upon the president, cashier, treasurer, attorney, or secretary, or any resident agent thereof." It appeared that the service was made by delivering a copy of the summons to one D.L.Roberts, in the city of Spartanburg, and the only question was whether Roberts was a "resident agent" of the company, there being no pretense that he sustained any other relation to the company; nor did it appear that the company had any property within this state, or that the cause of action had arisen therein. The motion was heard upon affidavits, both pro and con, as to the question of fact, —whether Roberts was the resident agent of the company, —and no question of law, so far as we can discover, was either raised or decided. Upon...