31 Nev. 170 | Nev. | 1909
By the Court,
This is an appeal from an order vacating a judgment entered by default, which order was based upon the conclusion of the district court that the service of the complaint and summons upon C. H. Wise, assistant cashier of the defendant,
The return of the sheriff states that he personally served the summons "on the State Bank and Trust Company, a corporation, by delivering to and leaving with C. H. Wise, the assistant cashier and managing agent of said State Bank and Trust Company, a corporation, the president, secretary, and cashier being absent from and non-residents of Esmeralda County.” It was alleged in the motion to vacate: "That on the 1st day of February, 1908, a copy of summons and complaint was served by the sheriff of Esmeralda County upon C. H. Wise, assistant cashier of the State Bank and Trust Company, defendant; that the said C. H. Wise is not secretary, cashier, or managing agent of the State Bank and Trust Company, a corporation, and never has held any of the said offices; and that C. H. Wise is not one of the persons designated by the statute upon whom service of summons can be made for the said corporation, and has no power or authority from the said corporation to accept service of the said summons for the said corporation, and is in no way authorized to bind the said defendant corporation by the acceptance of any service of summons.”
It appears from the affidavits and testimony introduced on the hearing of the motion to vacate that Wise, under appointment by the defendant, held the designated title and position of assistant cashier in charge of the Goldfield branch, and that no officer of the bank above him resided there. He testified without contradiction that he was the assistant cashier of that branch under the supervision of the cashier at Carson City; that he had power to sign drafts and correspondence; that his authority did not extend to any of the other branches ; that he had nothing to do with the policy, control, hr management of the defendant as a corporation; and that he considered the president the managing agent. As far as anything definite regarding his powers is indicated, he was only authorized to sign correspondence and drafts on other banks—
For appellant it is claimed, not only that Wise was the managing agent, but that service upon him as assistant cashier was sufficient. In support of these propositions, we are referred to the following cases:
Pond v. National M. & D. Company, 6 Kan. App. 718, 50 Pac. 973, in which the service of a summons upon the vice-president at a time when the president was absent and could not be found by the sheriff was sustained. It was said that in the absence of the president it was the duty of the vice-president to act as president, and that at such times he was the chief officer of the corporation.
In Comet C. M. Co. v. Frost, 15 Colo. 310, 25 Pac. 506, service upon the vice-president was deemed sufficient, although the return did not show that the president could not be found in the county.
In Railway Co. v. Stone, 60 Kan. 57, 55 Pac. 347, the court stated that, when the secretary was a non-resident, it believed that service upon the assistant secretary who lived within the state was sufficient.
In Colorado D. Co. v. Lombard Inv. Co., 66 Kan. 251, 71 Pac. 584, 97 Am. St. Rep. 373, the president of the defendant lived in New York and the secretary in Chicago. The statute authorized service on an inferior officer when the chief officer
In Brun v. N. W. Realty Co., 52 Misc. Rep. 528, 102 N. Y. Supp. 473, the majority of the court sustained the service upon a party who had executed contracts, signed checks, and done other discretionary business for the corporation without consulting its officers, and whose acts had been approved by the company. In the dissenting opinion Justice MacLean said: "The argument that it would be a hardship to apply the statute of the state, instead of a judge-made law to fit the case, is seldom cogent.”
There is good reason for holding that, in the absence of the president, he becomes superseded by the vice-president, who, in effect, becomes the president or head of the corporation, endowed with the functions of the president and subject to service as "the president or other head of the corporation” as this language is used in the statute. It is not so consistent to hold that service upon an assistant secretary is sufficient unless in the event of the non-residence of the secretary or cashier the powers and duties of the assistant are broad enough to make him in effect secretary or cashier, for that would be judicially legislating words into the practice act not placed there by the legislature.
So far as we have examined, the weight of authority, as well as the decisions of this court, are adverse to or by reason of different circumstances and statutes are distinguishable from the few cases holding that service upon an assistant secretary or assistant cashier is sufficient. Nor do we find that the cases generally support the contention that Wise was the managing agent of the corporation, because, subject to the super
Judge Hawley, speaking for the'United States Circuit Court in Doe v. Springfield B. & M. Co., 104 Fed. 687, 44 C. C. A. 130, cited several cases, and said: "To constitute a managing or business agent upon whom service of summons could be made, the agent must be one having in fact a representative capacity and derivative authority, and not one created by construction or implication, contrary to the intention of the parties.”
In Sterett v. D. & R. G. Co., 17 Hun, 316, service upon the assistant secretary of a railroad company was held insufficient. The court said: "The duties of a managing agent and of an assistant secretary are entirely distinct. * * * (Brewster v. Mich. Cen. R. R., 5 How. Prac. 183; Doty v. Mich. Cen. R. R. Co., 8 Abb. Prac. 427; Flynn v. Hudson R. R., 6 How. Prac. 308).”
In Great West Min Co. v. W. of A. M. Co., 12 Colo. 46, 20 Pac. 771, 13 Am. St. Rep. 204, it was said: "There is a wide distinction between a general and a special or particular agent—a distinction not unfounded or useless, and one which solves many cases. A special agency exists Avhere there is a delegation of authority to do a single act, and a general agency exists where there is a delegation to do all acts connected Avith a particular trade, business or employment. (Story Ag. sec. 17.) Numerous other authorities recognize this same .distinction so clearly laid down by Mr. Story. (Beals v. Allen, 18 Johns. 363, 9 Am. Dec. 221; Martin v. Farnsworth, 49 N. Y. 555; Merserau v. Insurance Company, 66 N. Y. 274; Railroad v. Reisner, 18 Kan. 458; Cruzan v. Smith, 41
In Osborne v. C. C. F. A. Corp., 9 Wash. 666, 38 Pac. 160, a case very similar to the present, it is said in the opinion: " The service npon which the judgment was founded was made upon R. Yeend, who was in charge of the branch store or house of the defendant in Walla Walla. The defendant was a domestic corporation, having its principal place of business in Dayton, Columbia County, and having a president, secretary, treasurer, and general manager. The latter officer had general control of the business, including that transacted by
At page 120 of 66 Am. Dec. it is said in the note: "In cases where the statute authorizes service on a 'head officer’ or a 'managing agent,’ the person on whom service may be made must be in the nature of a head officer whose knowledge would be that of the corporation (Newby v. Colt’s Pat. F. A. Co., L. R. 7 Q. B. Cas. 296), and who has the general supervision of the affairs of the corporation {Upper Mississippi Transp. Co. v. Whittaker, 16 Wis. 220; Carr v. Commercial Bank of Racine, 19 Wis. 272); that is to say, one whose agency extends to all transactions of the corporation, and not to the management solely of a particular branch or department of its business (Brewster v. Michigan Central R. R. Co., 5 How. Prac. 183; Emerson v. Auburn, 13 Hun, 160; Weights. Liverpool & London & Globe Ins. Co., 30 La. Ann. 1186).”
In Winslow v. Staten Island R. T. R. R. Co., 51 Hun, 300, 4 N. Y. Supp. 169, it was said in the decision: "Thefact that the person served was not the treasurer seems to be clearly established, and the fact that he occupied another office and performed the duties of treasurer, perhaps, did not authorize the service upon him so as to bind the corporation, as the assistant treasurer is not designated in the code as one of the persons upon whom such service shall be made. It is sought, also, to sustain the service by showing that Curry was a managing agent of the corporation. In this we think the proof wholly fails. It is true that Curry was engaged in and about
In Holgate v. Oregon Pacific R. R. Co., 16 Or. 128, 17 Pac. 859, it was held that corporations being the creatures of the statute, can be sued only in such way as the legislature has provided. Over the citation of a long list of cases it is said at section 7503 of Thompson on Corporations: "Where a particular method of service of process upon corporations is pointed out by statute, that method must be followed; and, where the statute designates the officer or agent upon whom process is to be served, it must be served upon that officer or agent, in order to give jurisdiction. Statutes of this kind are not regarded as directory, but as mandatory and exclusive. Hence, where the statute prescribes the method of service, a method not included therein will not be good, although it might have been good at common law. Thus, if the statute designates certain officers or agents upon whom writs may be served, a service upon another agent or even upon a person in possession of the property of the corporation sought to be affected by the suit will not give jurisdiction.”
In Scorpion Silver Mining Co. v Marsano, 10 Nev. 370, it was held that the service must come within the terms of the statute, and it was not sufficient when made upon the managing agent instead of the business manager.
In Lonkey v. Keyes S. M. Co., 21 Nev. 313, it was held that service upon the deputy secretary of state did not comply with the statute providing for service upon the secretary of
state; and Justice Murphy, speaking for the court, said;
It may be assumed that the district judge in deciding that the service upon Wise was noneffectual had in mind the opinions of this and other courts holding to. a strict construction, and considered that it was the settled law of this state that service must be made upon some one of the officers designated by the legislature. We could not reach the conclusion that thé lower court erred without in effect’ overruling the construction heretofore placed upon the statute, and, if the question were a new oné, we could see no reason for ’deciding differently so long as the statute stands in its present condition. Whether it would be better and more convenient to provide that, where a banking corporation has an assistant cashier in charge of a branch of its business, service may be made upon him, if the corporate officers are absent from the county, is a matter of expediency for the legislature, and not for the courts, to determine.
The only other specification of error in the statement is that the court erred in refusing to .admit in evidence the returns of service upon Wise in four other .cases which were brought against the defendant, but this objection is not properly before us, because, as claimed for respondent, it does not appear that any objection or exception was taken in this regard in the lower court. (McGurn v. McInnis, 24 Nev. 370; State v. Lawrence, 28 Nev. 440.)
The receiver appointed to take charge of the property and affairs of the defendant after the order from which, the appeal is taken was made has moved to dismiss the appeal upon the ground that he ought to have been served with the notice and statement. By attorney he has appeared, filed a brief, and argued the case upon its merits.
The order vacating the judgment is affirmed, and the case is remanded to the district court.