Straub v. Land & Investment Co.
| Decision Date | 03 December 1912 |
| Court | South Dakota Supreme Court |
| Parties | F. A. STRAUB, Plaintiff and respondent, v. LYMAN LAND & INVESTMENT COMPANY, Defendant and appellant. |
Appeal from Circuit Court, Lyman County, SD
Affirmed
Davis, Lyon & Gates
Attorneys for Appellant.
James Brown
Attorney for Respondent.
Opinion filed Dec. 3, 1912; Rehearing granted Feb. 3, 1913
Appeal from an order of the circuit court of Lyman county denying defendant's motion to vacate a judgment against appellant. The complaint in the allegation alleges the breach of an agreement by defendant to sell and convey to plaintiff certain farm lands situated in Lyman county; and demands damages in the sum of $360, with interest. The defendant is a domestic corporation organized and existing under the laws of this state. The summons and complaint were served by one Phillips, a deputy sheriff of Lyon county, Iowa, by delivering to and leaving the same with one Charles Shade, the treasurer of said corporation, a resident of Lyon county, Iowa, on the 7th day of February, 1908, in Lyon county, Iowa. No appearance or answer was made in the action, and the summons, complaint, and return of service, as stated, were filed in the office of the clerk of the circuit court of Lyman county, February 25, 1910, and on March 15, 1910, judgment was entered, against the defendant corporation, in the sum of $403.95, damages and costs. Thereafter, on the 21st day of August, 1911, defendant appearing specially moved the court, upon affidavit and the files and records of the court, to set aside and vacate the, alleged pretended judgment, upon the ground that the court, was without jurisdiction to enter the same. The affidavit accompanying the motion discloses the mode of service as indicated; that there was no affidavit or order for publication of summons; and that no other service was made or attempted than as above stated, and no appearance made in the action by defendant, or by any one in its behalf. In resistance of the motion plaintiff's counsel filed an affidavit of M. A. Brown, stating that summons was issued in said cause on January 8, 1908, and an attempt made, to serve the same upon officers of said corporation, residents of this state; whereupon it was disclosed that all the resident officers of said corporation had resigned, and that Charles Shade, the treasurer, was a resident of and in Lyon county, Iowa; whereupon service was made upon him, as stated. Upon the hearing an order was entered, denying defendant's motion to vacate the judgment, to which ruling defendant excepted, and has brought the action to this court for review, alleging error in the denial of the motion to vacate the judgment.
It is appellant's contention that service of the summons upon an officer designated by statute as one of the officers upon whom service of process may be had, but who resides and is served outside of the state, does not constitute due process of law in an action against a domestic corporation, so as to authorize a judgment for damages against such corporation.
It is respondent's contention on the other hand, that section 110 of the Code of Civil Procedure authorizes such service in an action against a domestic corporation, and that such service constitutes due process of law. Section 110 provides:
None of the other provisions of the section affect the question involved in this appeal. It seems plain to us that the clauses of the section above quoted are intended to distinguish broadly between domestic and foreign corporations as to the mode of service of summons. It will be observed that as to domestic corporations service may be made upon "the president or other head of the corporation, the secretary, cashier, treasurer, a director or managing agent thereof"; while as to foreign corporations such service can only be made upon "the president, treasurer, secretary or duly authorized agent thereof." The section also expressly provides that as to foreign corporations such service shall be made within this state, personally, upon the officers named; while as to domestic corporations the statute does not say that service shall be made within the state. It is almost universally held that service of process within the state upon officers of a foreign corporation, pursuant to statutory enactments, is sufficient to bring the foreign corporation within the jurisdiction of the state court, and to authorize the entry of judgment against such corporation in any case; and such statutes are upheld by an overwhelming weight of authority.
If service upon an officer of a foreign corporation within this state may be deemed due process of law, we see no reason why service of process upon an officer of a domestic corporation residing in a foreign state may not likewise be deemed due process as well. A domestic corporation is necessarily resident within the state, and cannot remove itself therefrom, either permanently or temporarily. Such corporation is at all times to be deemed an inhabitant of the state, and never beyond the territorial jurisdiction of its courts. A natural person may voluntarily remove from the state, either temporarily or permanently. Where the removal is temporary, the statute prescribes a mode in which process may be served and jurisdiction of the absent defendant obtained by leaving a copy...
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