Mars v. Oro Fino Min. Co.

• Decision Date: 28 October 1895
• Citation: Mars v. Oro Fino Min. Co., 7 S.D. 605, 65 N.W. 19 (S.D. 1895)
• Parties: MARS et al. v. ORO FINO MIN. CO. et al.
• Court: South Dakota Supreme Court

65 N.W. 19

7 S.D. 605

MARS et al. v. ORO FINO MIN. CO. et al.

Supreme Court of South Dakota

Oct 28, 1895

Syllabus by the Court.

1. In an action against a private corporation the return of the sheriff must affirmatively show that service was made upon an officer or an agent of the corporation specified in the statute as one upon whom service may be made.

2. An attorney in fact, authorized by such corporation to apply for patent to mining ground claimed by it and to execute such papers as may be necessary for that purpose, is not by virtue of such emplovment a "managing agent," within the meaning of that term as used in section 4898, Comp. Laws.

3. In an adverse proceeding under the provisions of section 2326 Rev. St. U.S. it is not sufficient that the adverse claimant places the summons in the hands of the sheriff within 30 days after the filing of the adverse claim, unless he proceeds with reasonable diligence to secure the service of such summons upon the defendant in the action.

4. Where, in such an action, no service of the summons was made in any manner upon the defendant for more than a year after the adverse claim was filed, and the defendant did not appear in the action, "proceedings," within the meaning of that term as used in said section, were not commenced in time, and the action was properly dismissed.

Appeal from circuit court, Lawrence county; Charles M. Thomas Judge.

Action by John B. Mars and others against the Oro Fino Mining Company and others. Defendants had judgment, and plaintiffs appeal. Affirmed.

Martin & Mason, for appellants. Edwin Van Cise, for respondents.

CORSON P. J.

This was an action commenced by the plaintiffs against the defendant to determine the question of the right of possession to a part of a mining claim for which the defendant was seeking to obtain a patent, and is what is known in the mining regions as an "adverse suit." Judgment dismissing the action, and plaintiffs appeal.

The return of the sheriff as to the service of summons is as follows: "I, Edward McDonald, sheriff of Lawrence county, do hereby certify and return that the annexed summons and complaint came into my hands for service on the 12th day of June, 1891, and that I served the same on the Oro Fino Mining Company, through John R. Wilson, attorney in fact for said Oro Fino Mining Company, defendant, personally, by delivering to and leaving with him a true copy thereof at Deadwood, in Lawrence county, S. D., on the 18th day of June A. D. 1891. E. McDonald, Sheriff of Lawrence County, by S. H Sweet, Deputy." No further proceedings seem to have been taken in the action until September 16, 1892, a year and three months after the said service, when the counsel for the defendant and respondent made a motion to quash the service of the summons upon the following grounds: "(1) This action was not commenced in time, to wit, thirty days after filing protest and adverse in the U.S. land office. (2) No service of summons or other process was ever made on the Oro Fino Mining Company, and John R. Wilson has no interest whatever in the subject-matter of the controversy. (3) Martin Haley, who was united in interest with John B. Mars and Arthur C. Mars in the Oro Fino lode and mining claim, was not joined in the protest and adverse claim, and is not joined as plaintiff or defendant, and no judgment could be entered without his joinder. (4) The citizenship of John P. Mars and Arthur C. Mars is not alleged in the complaint, nor are they shown to be competent to acquire the title to mining property. (5) The complaint in this and in other respects does not state facts sufficient to constitute a cause of action in favor of plaintiffs and against the defendants. This motion will be made upon the summons, complaint, and sheriff's return, now on file, on the affidavits of John R. Wilson and Edwin Van Cise, herewith served, and the certified copy of plaintiffs' protest and adverse claim, which will be lent plaintiffs' attorney for inspection. Edwin Van Cise, Attorney for Defendants, Appearing Specially for the Purpose of This Motion Only. Deadwood, S. D., September 16, 1892. To Joseph B. Moore, Attorney for Plaintiffs." Mr. John R. Wilson's affidavit so fully states his position in relation to the defendant corporation that we insert it in full:

"John R. Wilson, being sworn, says: He is the identical John R. Wilson who is made a party defendant in this action, and therein described as attorney in fact for the Oro Fino Mining Company. That on the 18th day of June, 1891, W. H. Sweet, deputy sheriff, handed him what purported to be a copy of the summons and complaint in the action, but that affiant within a few minutes returned it to him, and declined to retain the same, for the reason that, if intended as the commencement of an adverse action, it was not served in time. Neither did affiant in any manner so represent the Oro Fino Mining Company as to be a person on whom service of summons or other process could be made. That the affiant had no interest whatever in the subject of litigation, and was not an officer of the Oro Fino Mining Company or an agent of theirs, except in a limited way, in this: that he was a member of the firm of Van Cise & Wilson, attorneys for said Oro Fino Mining Company, and was authorized by said company to take steps to secure patents for it to certain mining property, and to sign all necessary papers in connection therewith, as stated in the following resolution adopted by the board of directors of the Oro Fino Mining Company on March 2, 1891: 'Resolved, that the authority granted by this board at its meeting of February 20th, 1890, to S. M. Houghton, be revoked, and that John R. Wilson, of Deadwood, South Dakota, be and is hereby empowered, in the name and in behalf of this company, to sign all papers and take all necessary steps to secure patents to the Oro Fino lode and the Oro Fino placer claim, owned by this company, in Bear Butte mining district, Lawrence county, South Dakota.' That he never filed a duly-authenticated copy of this, or any copy whatever, in the office of the secretary of state, or of the register of deeds of Lawrence county, and that he had no authority whatever, except as contained in said resolution and as an attorney at law, and never had charge, control, or management of said company's property whatever. That one Desire Bultynck was then in charge of the property of the Oro Fino Mining Company, and remained in charge and management thereof for several months thereafter. John R. Wilson.

Subscribed and sworn to before me this 17th day of August, 1892. Herbert A. Cable, Notary Public. [ Seal.]"

Affidavits were read on the part of the plaintiffs, but in the view we take of the case it will not be necessary to insert them. The motion seems to have been held under advisement until May 5, 1893, when the court made the following order: "The court being satisfied that the summons and complaint in this action were delivered with the intent that they should be actually served to the sheriff on June 12, 1891, and no fees demanded by the sheriff at the time, but that John R. Wilson, who is made a defendant, has no interest whatever in the properties or matters in controversy, and that he was neither managing agent nor a duly-authorized agent of the Oro Fino Mining Company, nor a person upon whom process against said company could be served, and the defendants' counsel (appearing specially as aforesaid) withdrawing without prejudice the application to dismiss the action, it is ordered that the service of the summons and complaint in this action, purporting to have been made June 18, 1891, and return of the sheriff thereon, be and the same is hereby quashed, vacated, and set aside. It is also further ordered that this action be not dismissed, but that the plaintiffs have leave to apply to the court for an order for the service of the summons by publication. Done this 5th day of May, 1893. Chas. M. Thomas, Judge." To which the plaintiff duly excepted. On May 6, 1893, the plaintiff obtained an order of publication, which on July 3d was vacated and set aside by order of the court. As no exception was taken to this order, it will not be further noticed. On July 10th a second order of publication was obtained. This order was quashed and vacated on October 23, 1893. Thereupon the counsel for the defendant moved for a dismissal of the action upon the ground that the action "was not commenced within the time required by the provisions of the Revised Statutes of the United States." This motion was granted and a judgment of dismissal rendered, in which it is adjudged that the action be dismissed "for the reason that the same was not commenced within the time required by the statute of the United States." This judgment was duly excepted to, and is the one from which the appeal in this case is taken.

The learned counsel for the appellants state their contention in this case as follows: "Appellants contend: First. That service of process upon John R. Wilson was service upon the Oro Fino Mining Company. Second. That, if the court did not acquire jurisdiction of the corporation defendant by the service upon John R. Wilson, yet that the alleged 'special' appearances of its attorney were in reality general, and conferred jurisdiction. Third. That if jurisdiction were gained in neither of these ways the court should have allowed it to be acquired by publication. Fourth. That this action should not be dismissed, (a) because the question as to whether proceedings had been commenced in time could not be raised by motion and affidavits; and (b) because, as a matter of fact, proceedings were actually commenced in time."

The first question to be determined is, was the service upon John R. Wilson such a service upon the...