Troy Lumber Co. v. State Sewing Mach. Corp.

• Decision Date: 11 April 1951
• Docket Number: No. 378,378
• Citation: 64 S.E.2d 415,233 N.C. 407
• Parties: TROY LUMBER CO. v. STATE SEWING MACH. CORP.
• Court: North Carolina Supreme Court

Page 415

64 S.E.2d 415

233 N.C. 407

TROY LUMBER CO. v. STATE SEWING MACH. CORP.

No. 378

Supreme Court of North Carolina.

April 11, 1951

David H. Armstrong, Troy, for plaintiff appellee.

Jones & Jones, Rockingham, for defendant appellant.

WINBORNE, Justice.

The assignments of error presented by appellants on this appeal are founded upon exception to the signing of the judgment from which the appeal is taken. Such assignment of error raises only the questions as to (1) whether the facts found by the judge of Superior Court support the judgment, and (2) whether error in matters of law appear upon the face of the record. Simmons v. Lee, 230 N.C. 216, 53 S.E.2d 79; Culbreth v. Britt Corp., 231 N.C. 76, 56 S.E.2d 15, and cases there cited. See also State v. Black, 232 N.C. 154, 59 S.E.2d 621. It does not bring up for review the findings of fact or challenge the sufficiency of the evidence upon which they are based. Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351; Bailey v. McPherson, 233 N.C. 231, 63 S.E.2d 559, and cases cited, and numerous others.

Within the purview of these principles, appellant states and debates in this Court three questions of law:

1. Does the return of the sheriff entered on the summons show service of it on defendant?

2. Was defendant doing business in the State of North Carolina?

3. Was Al Chaliff a proper person upon whom service on defendant, a corporation, could be had?

We hold that each question merits an affirmative answer.

In this connection it is appropriate, at the outset, to note certain pertinent statutory provisions.

'An action against a corporation created by or under the law of any other state or government may be brought in the superior court of any county in which the cause of action arose, or in which the corporation usually did business, or has property, or in which the plaintiffs, or either of them, reside, * * * By a resident of this state, for any cause of action. ' G.S. § 1-80(1).

Moreover, every corporation having property or doing business in this State, whether incorporated under its laws or not, shall have an officer or agent in this State upon whom process in all actions or proceedings against it can be served. G.S. § 55-38.

A summons in a civil action must be directed to the sheriff, or other proper officers of the county or counties in which the defendants, or any of them, reside or may be found; and it must command the sheriff or other proper officer to summon the defendant, or defendants, to appear and answer, etc. G.S. § 1-81.

'The officer to whom the summons is addressed must * * * serve it by delivering a copy thereof to each of the defendants. ' G.S. § 1-94.

The manner of delivering summons, if the action be against a corporation, shall be to, among others, the 'managing or local agent thereof'; and 'Any person receiving or collecting money in this state for a corporation of this or any other state or government is a local agent for the purpose of this section'; but 'such service can be made in respect to a foreign corporation only when it has property, or the cause of action arose, or the plaintiff resides, in this state, or when it can be made personally within the state upon the president, treasurer or secretary thereof.' G.S. § 1-97(1).

These statutes prescribe how the sheriff shall make service, and his duty as to the manner of discharging it. And when the sheriff returns that he has 'served' the summons, this implies that he has discharged his official duty in that respect, that is, that he has served it according to law. Strayhorn v. Blalock, 92 N.C. 292, 293; McDonald v. Carson, 94 N.C. 497, 498; Isley v. Boon, 113 N.C. 249, 18 S.E. 174; State v. Moore, 230 N.C. 648, 55 S.E.2d 177, 178.

In the Moore case, supra, Barnhill, J., considering a sheriff's return on a sci. fa., pertinently stated: "Served' implies service as by law required. * * * So then the return 'served', or as here, 'served on Tar Heel Bonding Company * * *' signed by the officer in his official capacity is sufficient--at least prima facie--to show service.'

Testing the return, now being considered, by the provisions of the statutes, and decisions of this Court, expressly service was made on each defendant. And since there is only one defendant, State Sewing Machine Corporation, and since Al Chaliff is not a defendant, the service on him was manifestly in his capacity as an agent of the corporation.

On the other hand, appellant, while conceding that the summons commands the sheriff to serve the defendant, contends that the return does not show service of it on defendant, and purports to show only service on the individual named. In support of this position, appellant cites and relies upon the cases of Plemmons v. Southern Improvement Co., 108 N.C. 614, 13 S.E. 188 and Hassell v. Daniels' Roanoke River Line Steamoat Co., 168 N.C. 296, 84 S.E. 363.

These cases, however, are clearly distinguishable from, and inapplicable to the case in hand.

In the Plemmons case, supra, the summons commanded the sheriff to summon 'A. H. Bronson, president of the Southern Improvement Co.', and it was so served. The Court held the service was legal only as to the individual, and that the superadded words 'President, etc.' were a mere descriptio personae, as would be the words 'Jr.' or 'Sr.'. A similar situation was involved in the Hassell case. Also the case of Hogsed v. Pearlman, 213 N.C. 240, 195 S.E. 789, cited by appellant is distinguishable.

Passing to the second question: On the facts found, was defendant doing business in the State of North Carolina so as to render it amenable to process in the courts of the State?

The phrase 'doing business in the State' has been the subject of consideration in several decisions of this Court with respect to statutes relating to service of process on foreign corporations. In Ivy River Land & Timber Co. v. National Fire & Marine Ins. Co., 192 N.C. 115, 133 S.E. 424, 426, it is said: 'no all-embracing rule as to what is 'doing business' has been laid down. The question is one of fact, and must be determined largely according to the facts of each individual case, rather than by the application of fixed, definite, and precise rules.'

Also in Commercial Inv. Trust Co. v. Gaines, 193 N.C. 233, 136 S.E. 609, 610, we find these expressions: 'It has been generally held that a foreign corporation cannot be held to be doing business in a state and therefore subject to its laws, unless it shall be found as a fact that such corporation has entered the state in which it is alleged to be doing business, and there transacted, by its officers, agents, or other persons authorized to act for it, the business in which it is authorized to engage by the state under whose laws it was created and organized. The presence, within the state, of such...