Voliva v. Richmond Cedar Works

• Decision Date: 27 May 1910
• Citation: 68 S.E. 200,152 N.C. 656
• Parties: VOLIVA v. RICHMOND CEDAR WORKS.
• Court: North Carolina Supreme Court

68 S.E. 200

152 N.C. 656

VOLIVA v. RICHMOND CEDAR WORKS.

Supreme Court of North Carolina

May 27, 1910

On rehearing. Petition allowed.

For former opinion, see 67 S.E. 42.

BROWN J.

The defendant is a foreign corporation owning property and doing business in this state prior to the act complained of and up to this time. The alleged damage occurred in 1904, and this action was commenced November 12, 1908. The defendant at all times maintained a process agent in the state, upon whom service could be had, and upon whom service actually was had in the case now being considered. The defendant pleaded the three-year statute of limitations. This court held that the plea is not available to a nonresident corporation.

Some of the earlier utterances of this court upon the subject would indicate that the plea is open to a nonresident corporation upon which service of process can be had within the state and against which a personal judgment may be rendered. Armfield v. Moore, 97 N.C. 34, 2 S.E. 347; Williams v. B. & L. Association, 131 N.C. 267, 42 S.E. 607. In this last case Mr. Justice Clark, speaking for the court, and quoting with approval Armfield v. Moore says "The plain intent of the statute is to put nonresidents on the same footing as residents, and not to protect them from an action unless they have been for two years exposed to service of summons." Since those decisions it has been held by this court that the plea is never available to a nonresident corporation, although it may have fully complied with our statutes (Revisal 1905, § 1243) and appointed and maintained an agent here upon whom process can be at all times served. Green v. Insurance Co., 139 N.C. 309 51 S.E. 887, 1 L. R. A. (N. S.) 623, and cases cited. We are now of opinion that these last cases are not well decided and that the better doctrine, more consonant with reason and justice, is that expressed in the citation from Williams v B. & L. Association.

The overwhelming weight of judicial precedent recognizes the doctrine as expounded by the Supreme Court of Iowa in Wall v. Railway, 69 Iowa, 501, 29 N.W. 428: "The theory of the statute of limitations is that it operates to bar all actions except as against persons and corporations upon whom notice of the action cannot be served because of their nonresidence. If such notice be served, and a personal judgment obtained which can be inforced in the mode provided by law against the property of such person or corporation, wherever found, then such person or corporation is not a nonresident as contemplated by the statute of limitations." To the same effect are the following cases, and particularly the strong case of Huss v. Central Railroad & Banking Co., 66 Ala. 472; Sidway v. Land & Live Stock Co., 187 Mo. 673, 86 S.W. 150; Lawrence v. Ballon, 50 Cal. 258; Hubbard v. Mortgage Co., 14 Ill.App. 40; St. Paul v. Chicago, etc., R. Co., 45 Minn. 387, 48 N.W. 17; Louisville, etc., R. Co. v. Pool, 72 Miss. 487, 16 So. 753; Colonial, etc., Mortgage Co. v. Northwest Thresher Co. (1905) 14 N.D. 147, 103 N.W. 915, 70 L. R. A. 814, 116 Am. St. Rep. 642; Turcott v. Yazoo, etc., R. Co., 101 Tenn. 102, 45 S.W. 1067, 40 L. R. A. 768, 70 Am. St Rep. 661; Connecticut Mut. L. Ins. Co. v. Duerson, 28 Grat. (Va.) 630; Thompson v. Texas Land, etc., Co. (Tex. Civ. App.) 24 S.W. 856; U.S. Express Co. v. Ware, 87 U.S. 543, 22 L.Ed. 422; Taylor v. Union Pac. R. Co. (C. C.) 123 F. 155; McCabe v. Illinois Cent. R. Co. (C. C.) 13 F. 827; Winney v. Sandwich Mfg. Co. (Iowa) 50 N.W. 565; Id., 86 Iowa, 608, 53 N.W. 421, 18 L. R. A. 524; Abell v. Penn. Mut. L. Ins. Co., 18 W.Va. 400; Norris v. Atlas Steamship Co. (C. C.) 37 F. 426; Johnson, etc., Dry Goods Co. v. Cornell, 4 Okl. 412, 46 P. 860.

After adverting to the few decisions to the contrary, 13 Am. & Eng. Ency. p. 904, says: "The majority of decisions maintain a rule believed to be more consonant with justice. The rule, briefly stated, is that if, under the laws of the domestic state, the corporation has placed itself in such a position that it may be served with process, it may avail itself of the statute of limitations when sued. Ability to obtain service of process is the test of the running of the statute of limitations." To same effect is 25 Cyc. 1238, which cites in support of the text, among a large number of cases, our own case of Williams v. B. & L. Association, supra.

In Murfree on Foreign Corporations it is said: "As to the second question, whether a foreign company, when sued, can plead the bar of the statute in defense, it may be said that the great weight of authority is in favor of the conclusion suggested above that the true test of the running of the statute is the liability of the party, invoking its bar, to the service of process during the whole of the period prescribed, that, if the operations of the company within the jurisdiction were such as to render it liable to suit, then it may plead the statute." The soundness of this doctrine has nowhere been more forcibly stated than by Mr Justice Pleasants in Penn. Co. v. Sloan, 1 Ill.App. 364, a most instructive and well-reasoned case. The Tennessee court, in Turcott v. R. R., 101 Tenn. 102, 45 S.W. 1067, 40 L. R. A. 768, 70 Am. St. Rep. 661, holds on a statute exactly like ours that a corporation is a person, within the purview of the statute, excluding absences from the state in computing the time for the running of the statute of limitations, and that a foreign corporation doing business in the state upon which service of process may be made may plead the statutes of limitations. The Constitution of Alabama contains a provision similar to our statute, requiring all foreign corporations doing business within the state to maintain an agent upon whom service of process may be made. That cour...