State ex rel. Hilton v. Le Roy Sargent & Co.

• Decision Date: 07 May 1920
• Docket Number: No. 21751.,21751.
• Court: Minnesota Supreme Court
• Parties: STATE ex rel. HILTON, Atty. Gen., v. LE ROY SARGENT & CO., Inc.

145 Minn. 448

177 N.W. 633

STATE ex rel. HILTON, Atty. Gen.,

v.LE ROY SARGENT & CO., Inc.

No. 21751.

Supreme Court of Minnesota.

May 7, 1920.

Appeal from District Court, Hennepin County; Joseph W. Molyneaux, Judge.

Action by the State of Minnesota, on the relation of Clifford L. Hilton, Attorney General, to vacate the charter of and dissolve Le Roy Sargent & Co., Inc., a domestic corporation. Application by defendants for an order setting aside service of summons heard upon affidavits and denied, and from an order directing the Attorney General to file a true copy of the summons in place of the original and giving defendant 20 days' additional time to answer, defendant appeals. Order affirmed,

Syllabus by the Court

A domestic corporation may appoint a resident agent or attorney with power to accept service of process in this state, and service of a summons on the person so appointed will confer jurisdiction on the court.

Notwithstanding such appointment, service of process may be made in the manner prescribed by subdivision 2, § 7735, Gen. St. 1913, if a domestic corporation has no officer or managing agent in this state, but, if so made, after service upon an authorized agent, it is superfluous and adds nothing to the effect of the service already made.

Both by statute and at common law a court of record has power to supply or complete its records by directing a copy of a lost summons to be filed in place of the original. Geo. T. Simpson, John F. Dahl, and Eugene S. Bibb, all of Minneapolis, for appellant.

Clifford L. Hilton, Atty. Gen., and John E. Palmer, Asst. Atty. Gen., for respondent.

LEES, C.

This action was brought by the state on the relation of the Attorney General to vacate the charter of and dissolve Le Roy Sargent & Co., Inc., a domestic corporation.

The complaint alleged that it failed to maintain an office for the transaction of business within this state; that it neglected, for one year after the due date thereof, to pay a note upon which it was a guarantor; and that it removed from this state all of its books and records and kept none of them here as required by law.

A summons was issued, attached to the complaint under one manuscript cover, and delivered to one Schultz for service. On July 7, 1919, he took the originals and copies to the office of the secretary of state and tendered the copies to him. He was informed that E. S. Bibb was the agent of the defendant to accept service of process in Minnesota, and that his appointment was on file. Thereupon Schultz took the papers to Bibb's office in Minneapolis and left with him one copy of the summons and complaint and procured his indorsement upon the original papers as follows: ‘Service accepted the 7th day of July, 1919. E. S. Bibb, Mg. Agent for Sargent & Co.’ A few days later the Attorney General was requested to dismiss the action. The request was based on Bibb's affidavit, stating that on March 17, 1917, the defendant appointed him its agent and attorney duly authorized to accept service of process in the state of Minnesota; that the appointment was filed in the office of the secretary of state, and that affiant continually thereafter was the agent of defendant in this state, upon whom process might be served; that he had admitted service of the summons and complaint in defendant's behalf; and that it had at all times maintained an office in this state in his charge wherein its books were at all times open to inspection. The Attorney General made an investigation of the facts, concluded not to grant the request, and on July 19, 1919, directed Schultz to take the original summons and complaint to the sheriff of Hennepin county to obtain his return upon the summons. This was done, and the sheriff made return that he was unable to find and that defendant could not be found within his county. On July 24, 1919, Schultz deposited two copies of the summons and complaint in the office of the secretary of state. One copy was immediately mailed to defendant at Minneapolis. On August 2, 1919, it was returned uncalled for. Thereupon it was mailed to and received by Bibb. There was evidence tending to show that on July 29, 1919, Schultz took the original summons and complaint, with the sheriff's return attached, and filed them in the office of the clerk of ...