Holgate v. Oregon P. R. Co.

• Decision Date: 07 March 1888
• Citation: 16 Or. 123,17 P. 859
• Parties: HOLGATE v. OREGON PAC. RY. CO.
• Court: Oregon Supreme Court

17 P. 859

16 Or. 123

HOLGATE v. OREGON PAC. RY. CO.

Supreme Court of Oregon

March 7, 1888

Appeal from circuit court, Multnomah county.

Whalley Bronough & Northup, for appellant.

George W. Yocum, for respondent.

THAYER J.

The appellant is a private corporation, constituted as such under the laws of the state, having its principal office at Corvallis, in the county of Benton. The respondent attempted to commence an action against the appellant in the said circuit court to recover a small amount of indebtedness alleged to be due him from it. He filed his complaint thereon in the office of the clerk of said circuit court, and issued a summons in the usual form notifying the appellant to appear and answer the complaint. The summons was delivered to the sheriff of said county of Multnomah, and thereafter, at said last-mentioned county served upon Wallis Nash, second vice-president of the appellant, intending the same as a service upon the latter. The appellant failed to appear in accordance with the notice contained in the summons; whereupon a default and judgment for the amount claimed in the complaint were entered against it, and from which judgment this appeal was taken. The counsel for the appellant present two questions for the consideration of this court upon the appeal, viz "(1) Can a corporation, organized and incorporated under the laws of this state, and having its principal office or place of business in a certain county, be sued or served in transitory actions in a county other than that in which its principal office is situated? (2) If it can, was the attempted service upon Wallis Nash, second vice-president of the defendant corporation, service upon the head of the corporation, the president and first vice-president being absent, notwithstanding the affidavit and showing of Wallis Nash that he was not the head of the corporation at the time of the service?"

A corporation, being the creature of the legislative assembly can be served with process, for the purpose of commencing an action against it, in such manner as that department may prescribe. Railroad Co. v. Hecht, 95 U.S. 168. It has prescribed the mode of service of such process; and the only question to be considered is whether the attempted service referred to was made in compliance therewith. Section 44 of the Code (last compilation) provides that "in all other cases [referring to transitory actions] the action shall be commenced and tried in the county in which the defendants, or either of them, reside or may be found at the commencement of the action; or, if none of the parties reside in this state, the same may be tried in any county which the plaintiff may designate in his complaint." Section 54 of the Code (same compilation) provides that the summons shall be served by the sheriff of the county where the defendant is found; and section 55, Id., provides that "the summons shall be served by delivering a copy thereof, together with a copy of the complaint, prepared and certified by the plaintiff, his agent or attorney, or by the county clerk, as follows: (1) If the action be against a private corporation, to the president or other head of the corporation, secretary, cashier, or managing agent, or in case none of the officers of the corporation above named shall reside or have an office in the county where the cause of action arose, then to any clerk or agent of such corporation who may reside or be found in the county, or, if no such officer be found, then by leaving a copy thereof at the residence or usual place of abode of such clerk or agent." These are all the provisions of the Code which bear upon the question, and we must ascertain therefrom what the legislature meant and intended by adopting them. They...