Okla. Fire Ins. Co. v. Barber Asphalt Paving Co.

• Citation: 1912 OK 397,125 P. 734,34 Okla. 149
• Decision Date: 14 May 1912
• Docket Number: Case Number: 1752
• Parties: OKLAHOMA FIRE INS. CO. v. BARBER ASPHALT PAVING CO.
• Court: Supreme Court of Oklahoma

1912 OK 397

125 P. 734

34 Okla. 149

OKLAHOMA FIRE INS. CO. v. BARBER ASPHALT PAVING CO.

Case Number: 1752

Supreme Court of Oklahoma

Decided: May 14, 1912

Syllabus

¶0 1. CORPORATlONS-- Actions--Service of Process. Where the statute points out a particular method of serving process upon a domestic corporation, such method is exclusive, and must be followed.

2. SAME. A service of summons upon a director of a domestic corporation, other than the chairman of the board, is unauthorized by section 5604, Comp. Laws 1909; it not appearing in the return that such director was chairman of the board, or that he occupied any office named in said section, though the return recites that the director served was "the highest officer" of the defendant corporation to be found in the county.

3. SAME--"Chief Officer"--"Managing Agent." A director, by or through the authority of his office, is not a "chief officer" or "managing agent" of a domestic corporation, within the meaning of section 5604, Comp. Laws 1909; hence service of summons on the corporation cannot be had by the delivery of a copy of the summons to such director.

Brook & Brook, for plaintiff in error.

Masterson Peyton, for defendant in error.

SHARP, C.

¶1 October 8, 1909, defendant in error, plaintiff below, brought suit in the superior court of Muskogee county against the plaintiff in error, defendant below, to recover judgment on a certain policy of fire insurance thereto-fore issued by said defendant to plaintiff. The defendant in error is a New York corporation; the plaintiff in error a domestic corporation. Summons was issued October 8, 1909, directed to the sheriff of Muskogee county. The return thereon is in the following language:

"State of Oklahoma, Muskogee County--ss.: Received within summons on this the 8th day of October, 1909, and, as commanded therein, made search for the president, vice president, secretary and treasurer of the Oklahoma Fire Ins. Co., and, failing to find any of said officers of said defendant company in my county, I summoned the defendant, the Oklahoma Fire Ins. Co., on this the 9th day of October, 1909, by delivering a certified copy of the within summons, with all of the indorsements thereon, to Eck E. Brook, one of the directors of said company; he being the highest officer of said defendant, the Oklahoma Fire Insurance Company, to be found in my county. In witness whereof, I have hereunto affixed my hand and seal on this the 9th day of October, 1909. R. B. Ramsey, Sheriff. J. M. Brucker, Deputy."

¶2 Thereafter, and on the 13th day of October, 1909, the defendant corporation appeared specially, and filed its motion to quash the summons and purported service thereof, claiming that said summons was not issued and returned according to law, and that it was not served upon any officer or agent of defendant corporation, and that the court did not thereby acquire jurisdiction over said defendant. This motion was overruled and exceptions saved, and the action of the court is assigned as error. Section 5604, Comp. Laws 1909, provides that:

"A summons against a corporation may be served upon the president, mayor, chairman of the board of directors, or trustees, or other chief officer; or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk or managing agent; or, if none of the aforesaid officers can be found, by a copy left at the office or usual place of business of such corporation, with the person having charge thereof."

¶3 Where the statute points out a particular method of serving process upon domestic corporations, such method must be followed. Great West Mining Co. v. Mining Co., 12 Colo. 46, 20 P. 771, 13 Am. St. Rep. 204; Illinois Central Ry. Co. v. Pairpoint Mfg. Co., 55 Ill. App. 231; Toledo Ice Co. v. Munger, 124 Mich. 4, 82 N.W. 663; State ex rel. Ellis v. King Bridge Co., 28 Ohio Cir. Ct. 147; Kernan, Adm'x, v. Northern P. Ry. Co., 103 Wis. 356, 79 N.W. 403; El Paso & S.W. R. Co. v. Kelly (Tex.) 83 S.W. 855; Kennedy et al. v. Hibernia Savings & Loan Co., 38 Cal. 151; Aldrich v. Anchor Coal & Development Co., 24 Ore. 32, 32 P. 756, 41 Am. St. Rep. 831; Reddington v. Mariposa, etc., Mining Co., 19 Hun 405; Cherry v. North, etc., Ry. Co., 59 Ga. 446; Union Pacific Ry. Co. v. Miller, 87 Ill. 45; Waco Lodge Number 70, I. O. O. F., v. Wheeler, 59 Tex. 554; Clark & Marshall on Corporations, sec. 267; Chambers Bros. & Co. v. King, etc., Manufactory, 16 Kan. 270. Section 68 of the Civil Code of Kansas, upon which the decision in Chambers Bros. v. King, etc., Manufactory, supra, is based, is identical with section 5604, Comp. Laws 1909. That there must be a compliance with the statute is, perhaps, nowhere better expressed than by the Supreme Court of the United States, in Amy et al. v. City of Watertown, 130 U.S. 301, 9 S. Ct. 530, 32 L. Ed. 946, in which Mr. Justice Bradley, speaking for the court, said:

"The question, then, is reduced to this: Whether, in case the mayor has resigned, and there is no presiding officer of the board of street commissioners (a body which seems to take the place of the common council of the city for many purposes), service of process on the city clerk and on a conspicuous member of the board is sufficient. If the common law (which is common reason in matters of justice) were permitted to prevail, there would be no difficulty. In the absence of any head officer, the court could direct service to be made on such official persons as it might deem sufficient. But when a statute intervenes and displaces the common law, we are brought to a question of words, and are bound to take the words of the statute as law. The cases are numerous which decide that, where a particular method of serving process is pointed out by statute, that method must be followed, and the rule is especially exacting in reference to corporations. Kibbe v. Benson, 17 Wall. 624, 21 [L. Ed.] 741; Alexandria v. Fairfax, 95 U.S. 774, 24 [L. Ed.] 583; Settlemier v. Sullivan, 97 U.S. 444, 24 [L. Ed.] 1110; Evans v. Dublin & D. R. Co., 14 Mees. & W. 142; Walton v. Universal Salvage Co., 16 Mees. & W. 438; Brydolf v. Wolf, 32 Iowa 509; Hoen v. Atlantic & P. R. Co., 64 Mo. 561; Lehigh Valley Ins. Co. v. Fuller, 81 Pa. 398. The courts of Wisconsin strictly adhere to this rule. Congar v. Galena & C. U. R. Co., 17 Wis. 477, 485; Watertown v. Robinson, 59 Wis. 513 ; Watertown v. Robinson, 69 Wis. 230 . The two cases last cited related to the charter now under consideration. In the first case, service was made upon the city clerk and upon the chairman of the board of street commissioners, whilst the board was in session, in the absence of the mayor, who could not be found after diligent search. The court, after referring to the provisions of the charter, and the Revised Statutes on the subject, say: 'The question whether the Revised Statutes control as to the manner of service is not material inquiry here, because both the charter and general provision require the service to be made upon the mayor; but no service was made upon that officer, as appears by the return of the sheriff. The principle is too elementary to need discussion that a court can only acquire jurisdiction of a party, where there

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