Silva v. Crombie & Co.

Decision Date01 May 1935
Docket NumberNo. 4030.,4030.
Citation39 N.M. 240,44 P.2d 719
CourtNew Mexico Supreme Court
PartiesSILVAv.CROMBIE & CO.

OPINION TEXT STARTS HERE

Appeal from District Court, Chaves County; McGhee, Judge.

Action by Juan Silva, administrator of the estate of Seferino Archuleta, deceased, against Crombie & Company. From the judgment setting aside certificate of default and judgment entered thereon, plaintiff appeals.

Reversed and remanded, with directions.

Statute providing for service of process on secretary of state upon death, resignation, or removal from state of statutory agent of foreign corporation, and that secretary of state shall notify such corporation by registered mail of such service, held not to deny foreign corporation due process of law. Comp.St.1929, § 32-150.

Lake J. Frazier, and G. L. Reese, Sr., both of Roswell, for appellant.

L. O. Fullen, of Roswell, for appellee.

ZINN, Justice.

Appellant, administrator of the estate of Seferino Archuleta, sued appellee, a foreign corporation, doing business in the state of New Mexico, for damages for death of appellant's intestate by wrongful act of appellee's employee.

The statutory agent of appellee having left the state, and no other person named to replace him, process was served upon the secretary of state of New Mexico, by delivering one copy of the summons and one copy of the complaint to the secretary of state. Appellee failed to answer within thirty days after service. A certificate of default was issued by the clerk of the district court, and judgment was rendered in favor of appellant.

About six months after judgment, appellee filed its motion to set aside and vacate the same, contending that the court had had no jurisdiction of the appellee, because there had been no valid service of summons on the appellee, who did not voluntarily appear, and that the rendering and entering of the final judgments were without due process of law. It conclusively appears that the secretary of state did not mail a copy of the complaint and summons to the appellee as required by Comp. St. 1929, § 32-150.

The trial court, in ruling on appellee's motion to vacate the judgment, held that at the time of the rendering and entering of the judgments it had no jurisdiction of the appellee corporation, because there had been no valid service of summons on appellee, who did not voluntarily appear; that no process or notice of the pendency of said suit was ever legally served on appellee; that the rendering and entering of judgments were without due process of law, and the same were set aside and vacated. From this order appellant prosecutes this appeal.

The decisive question in this case is whether the appellee corporation had such notice of the suit, and was so far subject to the jurisdiction and laws of New Mexico, that it was bound to appear, or take the consequences of nonappearance.

Comp. St. 1929, § 32-150, provides for service upon the secretary of state, when the statutory agent of any foreign corporation, who has been designated as the agent upon whom process may be served, dies, resigns, or removes from the state, and cannot be found. This statute also provides that such service is effective to all intents and purposes as if made upon the president or head officers of the corporation. There is an additional proviso therein to the effect that the secretary of state shall within two days after such service notify such corporation by registered letter directed to such corporation at its registered office, in which letter there shall be inclosed the process or other paper served.

Appellant contends that when the secretary of state is properly served, such service is sufficient.

Appellee contends that such service was not completed, and not effective, unless the secretary of state notified appellee of such service as provided by section 32-150.

[1] With this contention of appellee we do not agree. The particular terms of our statute we deem decisive of the question. The service upon the secretary of state was effective to all intents and purposes as if made upon the president or head officers of the corporation. If the Legislature had desired to make the service effective only when the secretary of state had notified such corporation, it could have so stated in plain language. Such language is discernible in the case of insurance companies. Comp. St. 1929, § 71-114. The neglect of the secretary of state is not chargeable to the appellant. The Legislature chose its terms with discrimination, and made it plain that the service of process on the secretary of state is the effective service, not the notice by the secretary of state to the foreign corporation that renders it effective.

[2] A foreign corporation can transact business in New Mexico only with the consent, express or implied, of this state. Bank of Augusta v. Joseph B. Earle, 13 Pet. 519, 10 L. Ed. 274. This consent may be accompanied by such conditions as New Mexico may think fit to impose, provided they are not repugnant to the Constitution or Laws of the United States, or inconsistent with those rules of public law which secure the jurisdiction and authority of each state from encroachment by all others, or that principle of natural justice which forbids condemnation without opportunity for defense. The Lafayette Insurance Co. v. French, 18 How. (59 U. S.) 404, 15 L. Ed. 451.

One of the conditions imposed by New Mexico upon every foreign corporation, before it is permitted to transact any business in this state, is to designate “*** its principal office in this state and its agent who shall be a domestic corporation or a natural person of full age actually resident in this state, together with his place of abode, upon which agent process against said corporation may be served and the agency so designated shall continue until the substitution by writing, of another agent. ***” Comp. St. 1929, § 32-206.

Process can be served on a foreign corporation by making service thereof on its officers, directors, or agents. Section 32-196. For the purpose of receiving such service, and being bound by it, the corporation is identified with such agent or officer. The corporate power to receive and act on such service, so far as to make it known to the corporation, is thus vested in such officer or agent. When the agent of this corporation “*** upon whom process against the corporation may be served shall die, or shall resign, or shall remove from the state, or such agent cannot with due diligence be found, it shall be lawful, while such default continues, to serve process against any such corporation upon the secretary of state, and such service shall be as effective to all intents and purposes as if made upon the president or head officers of such corporation. ***” Section 32-150, supra.

The secretary of state acts for and on behalf of the corporation, as...

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10 cases
  • Chavez v. Bridgestone Americas Tire Operations, LLC
    • United States
    • Supreme Court of New Mexico
    • November 15, 2021
    ...service on a foreign corporation doing business within a territory. See, e.g. , Silva v. Crombie & Co. , 1935-NMSC-041, ¶¶ 9-21, 39 N.M. 240, 44 P.2d 719 (discussing a statutory mechanism for obtaining jurisdiction over a foreign corporation, withdrawn from transacting business within the s......
  • Sawyer v. USAA Ins. Co.
    • United States
    • U.S. District Court — District of New Mexico
    • March 8, 2012
    ...of process on an agent in the context of a corporation. See Tr. at 31:19-25 (Collins). She stated that, in 1935, in Silva v. Crombie & Co., 39 N.M. 240, 44 P.2d 719 (1935), a corporation appointed an agent who subsequently left the state and the Supreme Court of New Mexico held that serving......
  • Sawyer v. USAA Ins. Co.
    • United States
    • U.S. District Court — District of New Mexico
    • March 8, 2012
    ...process on an agent in the context of a corporation. See Tr. at 31:19–25 (Collins). She stated that, in 1935, in Silva v. Crombie & Co., 39 N.M. 240, 44 P.2d 719 (1935), a corporation appointed an agent who subsequently left the state and the Supreme Court of New Mexico held that serving th......
  • Barrie-Peter Pan Schools, Inc. v. Cudmore
    • United States
    • Court of Appeals of Maryland
    • April 12, 1971
    ...at bar. We have not been cited nor have we located a case precisely on the point here involved. Close to our case is Silva v. Crombie & Co., 39 N.M. 240, 44 P.2d 719 (1935), which concerned suit against a foreign corporation doing business in New Mexico. The statutory agent left the state a......
  • Request a trial to view additional results
1 books & journal articles
  • SUBSTITUTED SERVICE AND THE HAGUE SERVICE CONVENTION.
    • United States
    • William and Mary Law Review Vol. 63 No. 5, April 2022
    • April 1, 2022
    ...business was effective despite the Secretary of State's failure to send the defendant a copy of the process. Silva v. Crombie & Co., 44 P.2d 719, 720-21 (N.M. 1935). The Maryland Court of Special Appeals in turn relied on Silva to hold that due process did not require the state official......

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