92 P. 1058 | Or. | 1907
delivered the opinion of the court.
1. As to the collateral impeachment of judgments rendered by domestic courts of general jurisdiction, personal service upon a foreign corporation, and the amendment of the sheriff's return, reference is made to the opinion in Knapp v. Wallace, 50 Or. 348 (92 Pac. 1054), decided at this term upon a similar service of summons. The ease of Brown v. Althouse Mining Co. was a transitory action against a foreign corporation. The complaint alleges a cause of action for personal service rendered by the plaintiff to the defendant between June 23, 1903, and May 15, 1904, as manager and superintendent of the operation of its mines in Josephine County, Oregon, under an employment by it at an agreed salary. That action was begun May 13, 1904, in Josephine County. As against a collateral attack, this is a sufficient showing that the defendant, the Althouse Mining Co., was doing business in Oregon when the action was commenced, which will give the courts of this State jurisdiction of the defendant company if served in manner provided by law; and in transitory actions against a nonresident the action may be commenced in any county plaintiff may select, and personal service anywhere within the State will give the court jurisdiction: Section 44, B. & C. Comp.; Frcett v. Wilson, 30 Or. 542 (47 Pac. 706, 48 Pac. 356). Section 55, B. & C. Comp., provides that service upon a private corporation shall be made upon it by delivering the summons and complaint to the president or other head of the corporation, secretarjr, etc.
2. The following facts are before ús: A private corporation doing business within the State; an action upon a contract for service within the State relating to that business; service of summons made upon its president in another county than the
“Although the service of process in an action may have been characterized by some defect or irregularity, it does not necessarily follow that the ensuing judgment will be void, for, if the party would take advantage of such a matter, he must do so in the action itself by some proper motion or proceeding. It. is only when the attempted service is so irregular as to amount to no service at all that there can be said to be a want of jurisdiction.”
And 1 Black, Judgments, § 263, states:
“It follows that the judgment of a court of general jurisdiction cannot be attacked collaterally when there has been some service of notice, although such service of notice may be materially defective. The rule as stated by the court in Nebraska is that, where there is an attempt at service reaching the defendant, a defect in the manner of the service or form of the return is a mere irregularhy, and is not ground for collateral
3. The situation here is identical with the case of Farrell v. Oregon Gold Co. 31 Or. 463 (49 Pac. 876), except that here the service on the president is not made in the county where the defendant company was doing business. In that case it is held that it is not necessary that the return show that he was the agent of defendant to represent it in this State, but that such a service is prima facie sufficient to* give the court jurisdiction. In that case the question arose upon a direct attack. In the case under consideration the attack is collateral, and the action, being transitory, may be brought in any comity, and the service upon the president within the State, when the corporation is doing business therein, is sufficient prima facie to give the court jurisdiction under B. & C. Comp. § 44, and Fratt v. Wilson, 30 Or. 542 (47 Pac. 706, 48 Pac. 356), and is prima facie evidence that the president represented the defendant company here. Therefore we hold that the defendant cannot question the sufficiency,of the service of the summons in this proceeding.
4. At the trial exception was taken by defendant to the ruling of the court in permitting plaintiff to prove that Knapp had indemnified him against any loss by reason of this action, and to prove that defendant was acting as sheriff when he took the property and held it as such; also, testimony that Norton was Brown’s attorney in the first action, and his agent in the purchase and possession of the property. We think that the admission of such testimony was not reversible error. It was competent for plaintiff to prove that defendant was acting in his official capacity as sheriff in taking the property. If he took it wrongfully, he is personally liable, and the facts may be shown. The verdict included no damages; therefore defendant was not prejudiced by evidence upon that question.
5. It is claimed by defendant that there is no allegation or
6. But this defective allegation is aided by the verdict, and the proof discloses • that it was taken from the plaintiff’s possession; the defendant testifying that at the time he attached the property he knew that he had previously sold it to plaintiff, and that it was in his possession. Therefore the defendant was not entitled to an instruction directing a verdict in his favor.
7. At the close of plaintiff’s testimony, defendant asked the court to instruct the jury to return a verdict for defendant, but no such proceeding is allowable under our statute unless defendant also rested his case. A motion for nonsuit is the only proceeding open to defendant at the close of plaintiff’s case for insufficiency of the evidence.
We find no error in the proceeding of the lower court, and therefore the judgment is affirmed. Affirmed. -
