Brewster v. Michigan Central Rail Road, 5 How. Pr. 183

Brewster v. Michigan Central Rail Road

5 How. Pr. 183 | N.Y. Sup. Ct. | 1850

Welles, Justice.

The service of the summons and complaint in this case is supposed by the plaintiff's counsel to have been in pursuance of § 134 of the Code. That section provides that if the suit be against a corporation, the summons shall be delivered to the president, or other head of the corporation, secretary, cashier, or managing agent thereof. The service in question was upon an individual, who assuming the facts as contended for by the plaintiff, was at most an agent for the defendant in a particular department of its operations, and whose powers must have been comparatively very much limited in their scope and object, and probably confined to the particular department of the business in which he was employed. It seems to me he can not *186be regarded as a managing agent of the corporation within the meaning of the section of the Code referred to. He was not a managing agent of the corporation. The most that can be said of him is that he was employed in a particular branch of the business transacted by the defendant, with powers to employ other persons as assistants, and perhaps with other incidental powers to enable him to carry into effect the general object of his particular agency; and perhaps also with powers to bind the defendant by his contracts. But it seems to me all this could never constitute him a managing agent of the defendant in such a sense as to render service of the summons upon him a good commencement of an action against the defendant. Every employment of another is an agency in the general sense of the term; and whenever such employment is accompanied by any discretion in the agent, he may be said to be, in such general sense, a managing agent.

An attorney for a bank or other corporation has demands put into his hands to collect, with discretionary power in regard to their management, as when and how to prosecute, or to compromise for the same, &c. &c. In such case the attorney for the bank would be as much the managing agent of the corporation appointing him as Reed in this case was the managing agent of the defendant. They were both in the employment of their principals and both had certain discretionary powers. The attorney was the managing agent of his employer in collecting or securing the demands put into his hands, and Reed was the managing agent of the defendant to procure business for the line of steamers and the rail road; and yet it could be pretended that an action could be commenced against the bank or other corporation in the case supposed by service of the summons on the attorney! Most clearly not. The managing agent upon which the summons may be served, must be one whose agency extends to all the transactions of the corporation; one who has or is engaged in the management of the corporation, in distinction from the management of a particular branch or department of its business.

*187This, I apprehend, is the only safe rule that can be adopted; once depart from it, and I see not why a suit may not be commenced against a corporation by serving the summons on any one who has, at the time, the most trifling agency committed to him; no matter how special or limited, provided he be vested with any discretion to manage the business of his agency. A merchant in Detroit on going to New York might be authorized by this defendant to contract in its name for an iron safe, with discretion as to kind, price, and time of payment. He, for the time being, would be a managing agent, and if the construction contended for be correct, service of the summons upon him would be a good commencement of an action against the defendant. Illustrations might be multiplied indefinitely, to show the danger and impropriety of such a latitudinary interpretation of the statute. I am clearly of the opinion that the service of the summons and complaint in this case upon Reed as the managing agent of the defendant was irregular and void.

This view of the case is sufficient to dispose of the motion; but there is another, in my judgment, equally fatal to the plaintiff ’s proceedings. The defendant is a corporation created by the laws of the state of Michigan. The judgment entered is a general one, in the nature of a judgment in personam against the defendant, and the execution is issued against the property of the defendant generally. Under it the sheriff is bound to take any property-of the defendant, real or personal, which he can find in his bailiwick, sufficient to make the amount. No attachment has been issued, and there has been no voluntary appearance of the defendant in the action. In Hulburt vs. The Hope Mutual Ins. Co. (4 How. Pr. R. 275), Mr. Justice Sill has shown in a very able and clear opinion, that in such a case, the courts of this state can not obtain jurisdiction of the defendant so as to render a personal judgment. The extent of power of the court over a foreign corporation where there has not been a voluntary appearance in the action, is to subject the property and effects of such corporation within this state to the payment of its debts, by a judgment in rem as to such property and effects, after the same *188has been attached, before the judgment is rendered, according to the directions of ch. 4 of title 7 of the Code.

The service of the summons with all subsequent proceedings on the part of the plaintiff, including the judgment and execution, must be set aside with $10 costs.