95 Cal. 598 | Cal. | 1892
The undertaking on appeal herein was executed by the American Surety Company, a foreign corporation, and the respondent moves to dismiss the appeal, upon the ground that the undertaking is not properly signed, and upon the further ground that the corporation has not filed with the secretary of state a designation of some person residing in this state upon whom service of summons may be made, as required by the act relating to foreign corporations, approved April 1, 1872. (Stats. 1871-72, p. 826.)
1. The undertaking is signed in behalf of the corporation surety by its second vice-president and its assistant secretary, and has affixed to it the seal of the corporation. There is nothing before us to show that these, officers were not authorized to sign and deliver the undertaking, and we cannot, therefore, hold that the undertaking is void because not properly signed.
2. The corporation has never filed with the secretary of state a paper designating the person upon whom service of process can be made for it in this state, as required by the act of the legislature above referred to; but it appears from the certificate of the insurance commissioner for this state that “the American Surety Company of New York City, New York, is duly authorized to transact business in this state, and has been so authorized since December 5, 1884.” It is provided by, section 1056 of the Code of Civil Procedure that in respect to corporations organized for the purpose of becoming surety on bonds or undertakings authorized by law, “ the insurance commissioner shall have the same jurisdiction and powers to examine the affairs of such corporations as he has in other cases; [and] shall require them to file similar' statements, and issue to them a similar certificate.”
The certificate referred to in this section is one that the
The certificate of the insurance commissioner, filed by the appellant herein, while it does not expressly state that the American Surety Company has complied with section 616 of the Political Code, is at least prima facie evidence that it has done so. There is a presumption that the insurance commissioner properly performed his official duty in issuing this certificate, and in the absence of any evidence showing that this certificate was issued under circumstances not authorized by law, the certificate will be regarded as sufficient proof that it was properly issued, and that, as stated above, the American Surety Company had and has authority to transact business in this state. If, in fact, that corporation has not complied with the section of the Political Code above referred to, the respondent will be permitted to renew his motion, and show that the certificate was improperly
Motion denied.
Sharpstein, J., and McFarland, J., concurred.