Lonkey v. Keyes Silver-Min. Co.

• Decision Date: 03 October 1892
• Docket Number: 1,364.
• Citation: 31 P. 57,21 Nev. 312
• Parties: LONKEY v. KEYES SILVER MINING CO., SHEEHAN et al., Interveners.
• Court: Nevada Supreme Court

31 P. 57

21 Nev. 312

LONKEY v. KEYES SILVER MINING CO., SHEEHAN et al., Interveners.

No. 1,364.

Supreme Court of Nevada

October 3, 1892

Appeal from district court, Storey county; RICHARD RISING, Judge.

Action by Oliver Lonkey, plaintiff, and Maurice Sheehan, James Cook Daniel Reldy, and John Kelly, interveners, against the Keyes Silver Mining Company, a corporation. Judgment for plaintiff and interveners. Defendant appeals. Reversed.

A. C Ellis, for appellant.

F. M Huffaker, for respondents.

MURPHY J.

This was an action to foreclose a number of liens against a mining claim and its appurtenances for material furnished and labor performed in and upon said mining claim, the property of the Keyes Silver Mining Company. Oliver Lonkey filed his complaint, and had summons issued thereon, and a notice to lien holders and claimants published, as required by the provisions of section 3822, Gen. St. Nev. On the day appointed for the hearing, James Cook, Daniel Reidy, Maurice Sheehan, and John Kelly, having filed their notices of lien, intervened. The default of the defendant, the Keyes Silver Mining Company, was ordered to be entered by the court. After the hearing of the testimony, the court entered its decree and judgment in favor of plaintiff and interveners for the several amounts claimed to be due, and ordered the property sold to satisfy said demands. The defendant appeals from the judgment, and asks for a reversal of the same, on the ground that no service of summons had been made on the defendant, either personally or constructively. Prior to the 25th day of February, 1889, service of process on foreign corporations doing business within this state was made by personal service upon an "agent, cashier, secretary, president, or other head thereof," or by publication of summons as provided by section 3052, Gen. St. On the last-mentioned date the governor approved an act of the legislature requiring foreign corporations doing business in this state to "appoint and keep in this state an agent, upon whom all legal process may be served for such corporation. Such corporation shall file a certificate, properly authenticated by the proper officers of such company, with the secretary of state, specifying the full name and residence of such agent, which certificate shall be renewed by such company as often as a change may be made in such appointment, or vacancy shall occur in such agency. Any and all legal process may be served upon such company by delivering to such agent personally a copy of such process, which shall be legal and valid." If any such company shall fail to appoint such agent, then it shall be lawful to serve such company with any and all legal process by delivering a copy to the secretary of state, and such service shall be valid to all intents and purposes. This act was intended as an additional mode and manner of serving process. Upon the issuance of the summons in the case at bar it was placed in the hands of the sheriff of Ormsby county, who made the following return thereon: "I hereby certify that I received the within summons on the 13th day of August, A. D. 1891, at 9:15 o'clock A. M., and duly served the same on the defendant named therein, by personally delivering a true copy thereof, attached to a certified copy of the complaint, to Deputy Secretary of State A. Helm, (the secretary being out of the state,) in Ormsby county, on the 13th day of August, 1891, and that I served personally the within summons upon A. Helm, deputy secretary of state, (but find upon examination of record that no such corporation existed or ever did exist,) defendant in the above entitled case, by delivering to A. Helm, etc., in the county of Ormsby, state of Nevada, on the 13th day of August, A. D. 1891, a true copy thereof, and by showing him this original."

The attorney for the appellant contends "that the service of process upon the deputy secretary of state was not a service upon the secretary, and was not a compliance with the statute under consideration." The law in relation to the service of process on foreign corporations must receive a strict construction, and the service must be made upon the officer or person mentioned in the act of the legislature. The cases are numerous which hold that, where a particular method of serving process is pointed out by the statute, that method must be followed, and the rule is especially exacting in reference to corporations. Was the service upon "A. Helm, deputy secretary of state, (the secretary being absent from the state,)" a compliance with the act of 1889? The service upon the deputy was certainly not sufficient, unless we can disregard the plain reading of the statute, which says: "If any such company shall fail to appoint such *** agent, then it shall be lawful to serve such company with any and all legal process by delivering a copy to the secretary of state." The statute does not require the copies to be filed, nor does it make them a part of the records of the secretary's office, nor require of that officer the performance of any duty in connection therewith, whatever. It merely, for the time being, makes that particular individual occupying the office of secretary of state the agent of the corporation for the particular purpose of receiving service of all processes issued against a foreign corporation, where it has failed to appoint an agent as required by the act. Section 1799, Gen. St. Nev., defines the duties of the deputy secretary of state during the absence of the secretary of state to be of a "ministerial nature, belonging to the office." In the case of City of Watertown v. Robinson, 69 Wis. 233, 34 N.W. 139, the supreme court of that state said: "When the statute prescribes a particular mode of service, that mode must be followed. Ita lex scripta est. There is no chance to speculate whether some other mode will not answer as well. This has been too often held by courts to require further citations. When the statute designates a particular officer to whom the process may be delivered, and with whom it may be left, as service upon the corporation, no other officer or person can be substituted in his place. The designation of one particular officer upon whom service may be made excludes all others." This language was afterwards approved and adopted by the supreme court of the United States in the case of Amy v. Watertown, 130 U.S. 317, 9 S.Ct. 537. 2 Beach, Corp. § 859; Tallman v. Railroad Co., 45 F. 156. In Chambers v. Manufactory, 16 Kan. 276, the court said: "But service of summons on a corporation cannot be made on every person who may, in some remote sense, be styled a clerk of the corporation. It could not be made on a deputy or under clerk. It must be made on the clerk--the principal clerk--of the corporation, if made on a clerk at all. It must be made on a person who holds the office of clerk or secretary, although such person might not in fact perform any of the clerical duties for the corporation." In Winslow v. Railroad Co., (Sup.) 2 N.Y. Supp. 682, service of summons on the assistant treasurer was held to be void "for the reason that he was not the president or other head of the corporation, the secretary or clerk to the corporation, the cashier or treasurer, or a director or managing agent." See, also, City of Watertown v. Robinson, 59 Wis. 515, 17 N.W. 542; Mariner v. Town of Waterloo, 75 Wis. 440, 44 N.W. 512; Alexandria v. Fairfax, 95 U.S. 779; Kennedy v. Hibernia S. & L. Soc., 38 Cal. 154; Aiken v. Mining Co., 6 Cal. 186; Cloud v. Inhabitants, 86 Mo. 362; Willamette F. C. M. & T. Co. v. Williams, 1 Or. 112, 113; Mining Co. v. Marsano, 10 Nev. 376; Blanc v. Mining Co., (Cal.) 30 P. 765; Jepson v. Cable Co., 20 N.Y.S. ___; Kibbe v. Benson, 17 Wall. 627; Reinhart v. Lugo, 86 Cal. 395, 24 P. 1089. It was not designed by the legislature that a service of process upon the deputy secretary of state should be deemed sufficient to bring a corporation into court. We are therefore compelled to hold that the service in this case gave the court no jurisdiction of the defendant. Whether, before service can be made upon the secretary of state, it must appear that the company has none of the officers mentioned in section 3051, Gen. St., within the state, or as to how that fact, and the further fact that the company has not appointed the agent required by the law of 1889, are to be made to appear, are questions that have not been argued, and concerning which we express no opinion.

In addition to the return as made by the sheriff on the summons there is an affidavit of one William H. Tully, who deposes that on the 12th day of August, 1891, he deposited in the post office a copy of the summons attached to a certified copy of the complaint in this action, addressed to the president and board of trustees of the Keyes Silver Mining Company at its office in San Francisco, Cal. This affidavit was made in compliance with the first provision of the second subdivision of section 3051, Gen. St., which requires "that if the suit be against a corporation organized under the laws of the state of California, in addition to such personal service, a copy of the summons, attached to a certified copy of the complaint, shall be deposited in...