State ex rel. Schmidt v. District Court of Eighth Judicial Dist. in and for Cascade County

• Decision Date: 21 September 1940
• Docket Number: 8092.
• Parties: STATE ex rel. SCHMIDT v. DISTRICT COURT OF EIGHTH JUDICIAL DIST. IN AND FOR CASCADE COUNTY et al.
• Court: Montana Supreme Court

105 P.2d 677

111 Mont. 16

STATE ex rel. SCHMIDT v. DISTRICT COURT OF EIGHTH JUDICIAL DIST. IN AND FOR CASCADE COUNTY et al.

No. 8092.

Supreme Court of Montana

September 21, 1940

Original proceeding by the State of Montana, on the relation of Donell Schmidt, against the District Court of the Eighth Judicial District of the State of Montana, in and for the County of Cascade, and the Honorable H. H. Ewing, a Judge thereof, for a writ of supervisory control to annul an order of the respondent court quashing service of summons on Farwell Ozmun, Kirk & Company, a Minnesota corporation, in an action brought by relator against L. A. Iverson and Farwell, Ozmun Kirk & Company.

Writ issued.

E. J Stromnes, of Great Falls, for relator.

Speer & Hoffman, of Great Falls, for respondents.

ANGSTMAN Justice.

This proceeding invokes the supervisory power of this court to annul an order of the respondent court quashing service of summons on Farwell, Ozmun, Kirk & Company, a Minnesota corporation, alleged to be engaged in business in Montana, in an action brought in respondent court by relator against L. A. Iverson and the company. Service of summons on the corporation was made upon L. A. Iverson. There was attempted service also under Chapter 10, Laws of 1937. The validity of that service need not be considered here. It is our view that the service was valid and complete under subdivision 2, section 9111, Revised Codes, and whether other methods of service should be upheld need not be considered.

Section 9111 provides that: "The summons must be served by delivering a copy thereof, as follows: *** 2. If the suit is against a foreign corporation, or a non-resident joint stock company or association, doing business and having a managing or business agent, cashier, or secretary within this state, to such agent, cashier or secretary, or to a person designated as provided in section 6652 of the civil code."

From the record it is made to appear that Farwell, Ozmun, Kirk & Company is engaged in the wholesale hardware business with its home office in St. Paul, Minnesota. When it first started doing business in Montana it qualified by appointing a statutory agent, who has since died, but none other was substituted in his place. It has never formally withdrawn its authority to do business in the state. Iverson was employed by the corporation at the time the action was instituted and for about four years prior thereto, selling its products in a part of the state of Montana. Other agents represented it in the same capacity in other parts of the state. He was paid a regular salary, and also expenses when on the road, including 5 1/2 cents per mile for his automobile. He traveled on an average of 25,000 miles per year. In his particular territory he attended to all the business of the company, making sales,...