Bailey v. Malheur Irrigation Co., 36 Or. 54

Bailey v. Malheur Irrigation Co.

36 Or. 54

| Or. | 1899

Mr. Chief Justice Wolverton,

after making the foregoing statement of the facts, delivered the opinion.

1. The suit having been commenced in the county where the cause thereof arose, and service of the summons made on the president of the defendant company in the county where its principal office is located, it is now questioned whether such service out of the former county is authorized. But, if it should be held that such authority exists, then it is insisted that the return of service is insufficient, in that it does not show that the defendant company, or the president upon whom said service was attempted to be made, or other officer or agent thereof, did not reside or have an office in the county in which the suit was commenced, or that diligent search had been made in said county for such an officer or agent without avail. In a local action or suit the defendant may always be served in the county in which he resides, notwithstanding the action or suit may have been instituted in another county. Sections 54, 55, Hill’s Ann. Laws, prescribe the manner of the service of a summons ; and, as it concerns private corporations, the latter section directs that it shall be served by delivering a copy thereof, together with a certified copy of the complaint, “to the president or other head of the corporation, secretary, cashier, or managing agent, or in case none of the officers of the corporation above named shall reside or have an office in the county where the cause of action arose, then to any clerk or agent of such corporation who may reside or be found in the county, or if no such officer be found, then by leaving a copy .thereof at the residence or usual place of abode of such clerk or agent.” All that part of the section quoted following the words ‘ ‘ managing agent” was added by way of amendment in 1876. This amendment, it was held in Holgate v. Oregon Pac. R. R. *58Co. 16 Or. 123 (17 Pac. 859), authorized the commencement of an action against a private corporation in any county where the cause arose, and that the corporation must be deemed to reside in the county where it has its principal office or place of business. In this respect, therefore, the amendment localized the action, in so far as it gave the parties suing the right or privilege of instituting the same in the county where the cause arose ; but it did not take away the right which formerly obtained of bringing it in the county where the corporation resides or has its principal place of business, so that now the corporation may be sued either where it resides or where the cause arose, except in those cases which the statute has impressed with a character purely local. Such is the logic and spirit, if not the letter, of the decision in the case referred to, and is a direct interpretation of the statute, so far as it pertains to actions at law.

2. The same interpretation should apply also as it respects suits in equity. By Section 389, Hill’s Ann. Laws, it is provided that the provisions of Chapter I, from and inclusive of Title V of such chapter, to and inclusive of Title XIII thereof, shall apply to and govern the mode of proceedings in suits, except as otherwise specially provided. Section 55 is a part of Title V, Chapter I, and therefore falls within the purview of said section 389. An amendment of section 55, as it regards actions at law, would therefore be an amendment as well as it respects suits in equity; so that, since the amendment, a suit may be begun against a corporation where the cause arose, as well as an action at law.

3. It would therefore follow quite naturally that service of summons may be had upon the corporation in the county in which is located its principal office or the place of its residence, although the suit or action was commenced where the cause arose, in a different county, *59unless the language of the amendment precludes it. It was held in Caro v. Oregon & Cal. R. R. Co. 10 Or. 510, that a service upon the clerk or agent of the corporation was a substituted service, and that, in order to make a valid service of the kind, it was necessary that the return of the sheriff should state facts to warrant it. The decision, however, fails to point out or designate the particular facts required to be stated ; but the statute indicates unmistakably of what they consist. In case none of the officers named — viz., the president or other head of the corporation, secretary, etc. — reside or have an office in the county where the cause arose, then it is permissible to make a substituted service upon any clerk or agent; and these are the facts required to be stated in order to give the return validity. This is the one and only mode of substituted service provided for, and it cannot be resorted to unless it is not practicable to obtain service upon some of the designated superior officers, by reason of their not residing or having an office within the county. If either of them resides or has an office within the county where the cause arose and was instituted, service must be made upon him for the corporation, to the exclusion of any clerk or agent; but the language of the amendment is not inhibitive of service upon the corporation at its place of residence. The object of the statute, it was said by Mr. Justice Bean, in Farrell v. Oregon Gold Co. 31 Or. 463 (50 Pac. 186), “is to provide for service upon such officers or agents of the corporation as will be most likely to bring notice home to the corporation ; and therefore it contemplates that in all cases the service of summons in an action against a corporation must be made upon the principal officers enumerated in the statute, if they reside or have an office in the county where the action is pending, but, if not, it may, if the action is brought in the county where the cause of action arose, be made *60upon any clerk or agent of the corporation who may reside or be found in. such county, without regard to his rank.” So a return of service, showing that it was made upon the president of the corporation in the county where the cause arose and was instituted, was held to be- valid, although it did not show that he resided or had an office in such county. The service upon the clerk or agent, as before stated, is the only substituted service provided for, and all else is personal, in so far as a corporation is capable of being served personally. Originally it was competent to serve a corporation in the county of its residence. But the amendment of section 55 having extended the right to sue in the county in which the cause arose, the legislature, realizing that the defendant corporation may not always have an office there, with one of its superior officers as an incumbent or residing within the county, provided also for the substituted service. It was not designed, however, to impinge upon the personal service which obtained under the statute as it originally stood. Such, it appears to us, is the true intendment of the statute as amended. So we take it that the service in the case at bar was valid, although the return does not show that none of the superior officers of the corporation resided or had an office in the county where the cause arose and was instituted, or that no clerk or agent of the company could be found in said county.

4. A further contention is made by the appellant that the complaint does not state facts sufficient to constitute a cause of suit, and that therefore the decree of the court below should be reversed. We have looked into the complaint carefully, and find it contains the statement of a good title (whether imperfectly stated, or not, is not necessary for us to decide), and hence is sufficient to support the decree, where it is taken, for want of an answer : *61Askren v. Squire, 29 Or. 228 (45 Pac. 799). These considerations affirm the decree of the court below, and it is so ordered. Affirmed.