Whitehurst v. Kerr

• Decision Date: 21 September 1910
• Citation: 68 S.E. 913,153 N.C. 76
• Parties: WHITEHURST v. KERR et al.
• Court: North Carolina Supreme Court

68 S.E. 913

153 N.C. 76

WHITEHURST v. KERR et al.

Supreme Court of North Carolina

September 21, 1910

Appeal from Superior Court, Pasquotank County; Ferguson, Judge.

Action by G. W. Whitehurst against Kerr and Wolcott, receivers of the Norfolk & Southern Railway Company, and others. From the order dismissing the service of process, plaintiff appeals. Order set aside.

The width of Albemarle Sound, being a physical fact, may be taken judicial notice of.

Return of service on the McLean Contracting Company as follows "Received February 26, 1910. Served February 26, 1910. By reading to and leaving a copy with Mr. F. H. Cameron bookkeeper and acting agent for the above defendant company the McLean Contracting Company." At spring term, 1910. The defendant, the McLean Contracting Company, a special appearance having been entered for the purpose, moved to dismiss the action as to said company for want of proper service. Motion allowed and plaintiff excepted and appealed.

J. C B. Ehringhaus and E. F. Aydlett, for appellant.

S Brown Shepherd and Pruden & Pruden, for appellees.

HOKE J.

The power of a state Legislature to provide for service of process on foreign corporations doing business within the state is no longer questioned. Speaking to the subject in the case of St. Clair v. Cox, 106 U.S. 350, 1 S.Ct. 354, 27 L.Ed. 222, Associate Justice Fields said: "The state may therefore impose as a condition upon which a foreign corporation shall be permitted to do business within her limits that it shall stipulate that in any litigation arising out of its transactions in the state it will accept as sufficient the service of process on its agents or persons specially designated, and the condition would be eminently fit and just. And the condition and stipulation may be implied as well as expressed. If a state permits a foreign corporation to do business within her limits, and at the same time provides that, in suits against it for business there done, process shall be served upon its agents, the provision is to be deemed a condition of the permission, and corporations that subsequently do business in the state are to be deemed to assent to such condition as fully as though they had specially authorized their agents to receive service of the process. Such condition must not, however, encroach upon those principles of natural justice which require notice of a suit to a party before he can be bound by it. It must be reasonable and the service provided for should be only upon such agents as may be properly deemed representatives of the foreign corporation. The decision of this court in Lafayette Insurance Co. v. French [18 How. 404, 15 L.Ed. 451], to which we have already referred, sustains these views." And the doctrine so stated is universally recognized and acted on.

Our state statute applicable to and controlling the question presented on this appeal (Revisal 1905, § 440) is, in terms, as follows: "If the action be against a corporation to the president or other head of the corporation, secretary, cashier, treasurer, director, managing or local agent thereof: Provided, that any person receiving or collecting moneys within this state for, or on behalf of, any corporation of this or any other state or government, shall be deemed 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 within this state, or the cause of action arose therein, or when the plaintiff resides in the state, or when such service can be made within the state, personally upon the president, treasurer, or secretary thereof." Construing a statute of similar import, it has been held that the first clause enumerates the persons on whom service of process can be made, to wit, on the president or other head of the corporation, secretary, cashier, treasurer, director, managing or local agent thereof, and in that respect applies to all corporations both domestic and foreign. Then follows the proviso as to who shall be considered local agents for the purpose of the section, and the last clause establishes certain conditions, restrictive in their nature, which are required and necessary to a proper and valid service on foreign corporations. That is, service on the persons designated in the first clause shall only be good as to foreign corporations: (1) When they have property in the state, or (2) when the cause of action arose therein, or (3) when plaintiff resides in the state. And then a fourth method is established: (4) "When service can be made within this state personally on the president, treasurer or secretary thereof." This construction will be found approved and sustained in Foster v. Chas. Betcher Lumber Co., 5 S. D. 57, 58 N.W. 9, 23 L. R. A. 490, 49 Am. St. Rep. 859; and authoritative decisions here and elsewhere are in accord with the general principles of that well-considered case. Higgs v. Sperry, 139 N.C. 299, 51 S.E. 1020; Clinard v. White & Co., 129 N.C. 251, 39 S.E. 960; Jones v. Insurance Co., 88 N.C. 499; In re Hohorst Petitioner, 150 U.S. 653, 14 S.Ct. 221, 37 L.Ed. 1211; Société Foncèire v. Millikin, 135 U.S. 304, 10 S.Ct. 823, 34 L.Ed. 208; Tuchband v. C. & A. R. R. Co., 115 N.Y. 437, 22 N.E. 360; Express Co. v. Johnson, 17 Ohio, 641; Porter v. Railroad, 1 Neb. 14.

In Jones v. Insurance Co., supra, it was expressly held that service on a foreign corporation could be made either on a general agent or local agent; and, construing the terms of the proviso in the statute to the effect "that any person receiving or collecting moneys within the state for or on behalf of any corporation of this or any other state or government, shall be deemed a local agent for the purpose of this section," it has been further held that this "authority to receive money is not the exclusive test of a local agent upon whom service of process could be made," and that these words of the proviso were not intended to "limit service to such class of agents but to extend the meaning of the word agent to embrace them." Copland v. Telegraph Co., 136 N.C. 12 48 S.E. 501. While there is some apparent conflict of decision in construing these...