Taylor v. Ohio River R. Co

• Decision Date: 21 November 1891
• Citation: 35 W.Va. 328,13 S.E. 1009
• Parties: Taylor v. Ohio River R. Co.
• Court: West Virginia Supreme Court

13 S.E. 1009

35 W.Va. 328

Taylor

v.Ohio River R. Co.

Supreme Court of Appeals of West Virginia.

Nov. 21, 1891.

Action against Domestic Railroad Company— Service of Summons.

Service of a summons in an action before a justice against a domestic railroad corporation upon its president must be in the county in which he resides, and the return must show that fact, else it is invalid. A judgment bused on a return of service not showing that fact, there being no appearance, is void. (Syllabus by the Court.)

Error to circuit court, Mason county.

Action by Adam Taylor against the Ohio River Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

V. B. Archerjor plaintiff in error.

Simpson & Howard and James B. Menager, for defendant in error.

Brannon, J. Adam Taylor recovered judgment before a justice of Mason county against the Ohio River Railroad Company upon the verdict of a jury, and the case went to the circuit court by certiorari; and, the judgment having been there affirmed, the company brought the case to this court. The point of error assigned against the judgment is that the return of service of tho summons to answer the action, upon the president, while it shows such service to have been made in Mason county, does not show that it is the county of his residence. The Code, (Ed. 1887,) c. 50, 8 34, reads as follows: "(34) Unless otherwise specially provided, such process or order, and any notice against a corporation, may be served upon the president, cashier, treasurer, or chief officer thereof, or if there be no such officer, or if he be absent, on any officer, director, trustee, or agent of the corporation, at its principal office or place of business, or in any county in which a director or other officer or any agent of said corporation may reside. But service at any time may be made upon any corporation in the manner prescribed for similar proceedings in the circuit court." Sections 35-37 provide for service on foreign corporations, foreign insurance and express companies and banks, and need not be further mentioned. Then section 38 provides as follows: "(38) Service on any person under either of tho last four sections shall be in the county in which he resides, and the return must show this, and state on whom and when the service was; otherwise the service shall not be valid." Leaving out the closing clause of section 34, authorizing for process in justices'courts similar service to that for process in suits in circuit courts, it would seem to be very plain that a return of service on a president of a domestic corporation, not showing that the service was made in the county of his residence, would be bad. But it is contended that said closing clause adds to its preceding provisions, and gives an additional mode of service, provided by another section of the Code, namely, section 7, c. 124, and that this service and return will be sustained by that section. That section is as follows: " (7) It shall be sufficient to serve any process against or notice to a corporation on its mayor, president, or other chief officer, or any person appointed pursuant to law to accept service of process for it, or in his absence from the county or municipal corporation, to the officer of which the process is directed, it shall be sufficient to serve the notice or process, if the corporation to be served be a city, town, or village, on two members of the council, and if it be not a city, town, or village, on the secretary, cashier, or treasurer, and if there be none such, or he be absent, on a member of the board of trustees, directors, or visitors. If there be not within the state any other person on whom there can be service as aforesaid, service on a director, agent, (including, in the case of a railroad company, a depot or station agent in actual employment of the company,) or other officer of the corporation against which the case is, shall be sufficient."

To justify the omission of the return to show that this service was in the county in which the president of the company resided, it is urged that while, if the service were tested only by section 34 of chapter 50 without its closing clause, the return would be bad, yet as under such closing clause the service may be under section 7 of chapter 124, and as this section does not require the return to show that the service was in the county in which the president resided, the return is good. If this be so, then this unreasonable result would follow, namely: Service on the corporation president is authorized under both sections. You serve on such president. One section requires the return to show that it was in the county of his residence; the other does not. In one breath the law says that fact must be shown; in the same, that it need not: an enactment and repeal in the same act; a command and a retraction in the same instant. If there were any persons named in section 34 for service of process not named in section 7, it might be said with some force that where service was on one named in section 34, but not in section 7, the return must show service in his county, but, if on one named in both, it need not; but there are none named in section 34 not named in section 7, and there are some named in section 7 not namedin section 34. Until chapter 59, Acts 1SS7, was...