Tinker v. Rice Motors Inc

• Decision Date: 11 December 1929
• Docket Number: (No. 605.)
• Citation: 150 S.E. 701,198 N.C. 73
• Parties: TINKER. v. RICE MOTORS, Inc.
• Court: North Carolina Supreme Court

150 S.E. 701

(198 N.C. 73)

TINKER.

v.RICE MOTORS, Inc.

(No. 605.)

Supreme Court of North Carolina.

Dec. 11, 1929.

[Ed. Note.—For other definitions, see Words and Phrases, First, Second, and Third Series, Managing Agent.]

[Ed. Note.—For other definitions, see Words and Phrases, First, Second, and Third Series, Local Agent.]

[Ed. Note.—For other definitions, see Words and Phrases, First, Second, and Third Series, Agent.]

Appeal from Superior Court, Buncombe County; Johnson, Special Judge.

Action by William Tinker against the Rice Motors, Incorporated. From a judgment dismissing the action, plaintiff appeals. Affirmed.

Pegram & Thornton and James E. Rector, all of Asheville, for appellant.

Lee, Ford & Coxe, of Asheville, for appellee.

ADAMS, J.. This is a motion to set aside the purported service of process and to dismiss the action. The motion was allowed upon the following facts, which were found by the trial judge.

The plaintiff was indebted to the defendant on certain notes; also on agreements for the conditional sale of personal property. In January, 1929, J. E: Pierce, upon whom process in the present action was served, came to Buncombe county and made an effort to collect the amount due by the plaintiff to the defendant. Failing to make the collection, he caused warrants to be issued, charging the plaintiff with the felonious trading in Tennessee of property he did not own, and with feloniously removing from Tennessee personal property, the title to which had been retained, In violation of the laws of that state, and with being a fugitive from justice.

After his arrest under these warrants, the plaintiff sued out a writ of habeas corpusand was released from custody. He then brought an action against the defendant for false imprisonment, abuse of process, and malicious prosecution, and caused process to be served on J. E. Pierce, who was the bookkeeper of the nonresident defendant, but not an officer or a stockholder or a general agent of the defendant, or clothed with authority generally to make collections for the defendant. Pierce's sole authority in North Carolina and his sole business here were to collect the defendant's claim against the plaintiff and to take such legal action as was necessary to achieve this purpose. He was a witness neither in the trial before the justice of the peace nor upon the return of the writ of habeas corpus. The findings are not subject to review in this court. Higgs & Co. v. Sperry, etc., Co., 139 N. C. 299, 51 S. E. 1020.

Upon these facts it was adjudged that Pierce was not an agent upon whom process could be served in an action against the defendant, and that the action be dismissed. It will be observed that the question is not whether the defendant, while in North Carolina, was immune from the service of process in an action against him personally, but whether service upon him subjected the defendant to the jurisdiction of the court in which the plaintiff instituted his action.

The first paragraph of C. S. § 483, is as follows: "If the action is against a corporation, to the president or other head of the corporation, secretary, cashier, treasurer, director, managing or local agent thereof. Any person receiving or collecting money in this state for a corporation of...