Oklahoma Fire Ins. Co. v. Barber Asphalt Paving Co.
Decision Date | 14 May 1912 |
Citation | 125 P. 734,34 Okla. 149,1912 OK 397 |
Parties | OKLAHOMA FIRE INS. CO. v. BARBER ASPHALT PAVING CO. |
Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where the statute points out a particular method of serving process upon a domestic corporation. such method is exclusive, and must be followed.
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 director served was "the highest officer" of the defendant corporation to be found in the county.
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.
Commissioners' Opinion, Division No. 1. Error from Superior Court, Muskogee County; Farrar L. McCain, Judge.
Action by the Barber Asphalt Paving Company against the Oklahoma Fire Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
Brook & Brook, of Muskogee, for plaintiff in error.
Masterson Peyton, of Muskogee, for defendant in error.
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 theretofore issued by said defendant to plaintiff. The plaintiff in error is a New York corporation; the defendant 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:
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." 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. Fairpoint 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. Kelley (Tex.) 83 S.W. 855; Kennedy et al. v. Hibernia Savings & Loan Co., 38 Cal. 151; Aldrich v. Anchor Coal & Development Co., 24 Or. 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, § 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 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. 307, 9 S.Ct. 530, 32 L.Ed. 946, in which Mr. Justice Bradley, speaking for the court, said: ...
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