67 F. 561 | U.S. Circuit Court for the District of Western Texas | 1895
after stating the case, delivered the following opinion:
By article 1223, Rev. St. Tex., it is provided that:
“In suits against any incorporated company or joint-stock association, the citation may be served on the president, secretary or treasurer of such company or association, or upon the local agent representing such company or association in the county in which the suit is brought, or by leaving a copy of the same at the principal office of the company during office hours.”
The writ in this case commanded the marshal to “summon the San Antonio & Gulf Shore Railway Company,” and the return shows that a copy of the citation, together with a certified copy of the petition, was delivered to the president, secretary, and local agent, respectively, in person. The argument of the railway company’s counsel assumes the necessity of incorporating in the petition and citation the name of the president, secretary, or other officer or agent upon whom service of process is sought, in order to render the service effective as to the corporation. That such practice would be convenient to the officer making the service may be admitted. But no reason is perceived why the insertion of the officer’s name in the petition and citation should be considered as a prerequisite to valid service. And this observation is especially applicable' to those cases in which service is had upon the president, secretary, or other general officer or managing agent of the corporation. See Railway Co. v. Wells, 3 Tex. Civ. App. 307, 23 S.
“The citation commanded service thereof to be made upon the defendant, the Missouri Pacific Railway Company, and in other respects complied substantially with the requirements of the statute. It is not essential, though it is proper and the better practice, in a citation against an incorporated company, to name the local agent upon which the same is to, be served. An omission to do so, as there was in this case, does not invalidate the citation. Railway Co. v. Gage, 63 Tex. 568; Railroad Co. v. Sauls, 2 Willson, Civ. Cas. Ct. App. § 242. The return upon the citation shows that it was served upon A. B. Davis, the local agent of defendant company, by delivering to him in person a true copy of the writ, stating the date of such service. This shows a legal service. Rev. St. arts. 1223-1225; Insurance Co. v. Millikin, 64 Tex. 46.” 3 Willson, Civ. Cas. Ct. App. § 386.
But conceding the omission in the petition and citation to name the officer to be material, the important inquiry arises: Gan such omission or defect be taken advantage of by a motion to quash? This question has been answered in the negative by the supreme court of this state. In Railway Co. v. Gage, 63 Tex. 568, neither die petition nor the citation gave the name of the person who was the local agent of the company; and while it is there held that if, in such cases, “there be no appearance for the defendant, the court ought to take no action until proof is made that the person served was really the local agent of the corporation sued, acting for it in the county in which the suit is brought,” yet, at pages 573, 574, Mr. Chief Justice Stayton, as the organ of the court, further, says:
“In the ease before us, however, the defendant did appear, and for the purpose of abating the writ, a copy of which was left at its office in San Antonio, filed a sworn plea; but it filed no such plea in reference to the fact of agency or not of the person on whom the writ was served in the county in which the suit was brought, but sought simply to quash the writ and service, upon purely technical grounds, without in any manner denying that the person served was its local agent in 'the county of Uvalde at tíie time the writ was served. We are of the opinion that this was not the proper manner for raising the question of the sufficiency of the service, and that the court did not err in overruling the motion; hence the ruling on the exception to the sworn plea, raising an issue a,s to the locality of its principal office, although erroneous, becomes unimportant.”
In tlie case at bar, the railway company, not denying under oath, as it should do, that the persons served were its officers or agents at the date of service, merely interposes a motion to quash upon purely technical grounds, and the court is of opinion that the question of sufficiency of the service cannot be raised in this manner. The motion should be overruled; and it is so ordered.