Thе sole issue on this appeal is whether the service of process made in this case was sufficient to obtain personal jurisdiction over the corporate defendant.
The threshold questions in any dispute over the adequacy of service of a summons relate not оnly to the very purpose of the summons which is to give notice to the defendant of the pendency of an action against him, but also to whether the appropriate statutory procedures for service have been complied with.
Heaston v. Austin
In material part, sec. 262.06 (5), Stats., provides:
“262.06 Personal jurisdiction, manner of serving summons for. A court of this state having jurisdiction of the subject matter and grounds for persоnal jurisdiction as provided in s. 262.05 may exercise personal jurisdiction over a defendant by service of a summons as follows:
(t
“(5) Domestic or fоreign corporations, generally. Upon a domestic or foreign corporation:
“(a) By personally serving the summons upon an offiсer, director or managing agent of the corporation either within or without this state. In lieu of delivering the copy of the summons to the officer specified, the copy may be left in the office of such officer, director or managing agent with the person who is apparently in charge of the office.
“(b) . . .
“(c) By serving the summons in a manner specified by any other statute upon the defendant or upon an agent аuthorized by appointment or by law to accept service of the summons for the defendant.” (Emphasis added.)
Both parties agree that Vetta was not an officer, director or managing agent of the corporation. Plaintiff contends, however, that Vetta was “apparently in charge of the office” and the trial court so found.
Square D substantially relies on the case of
Carroll v. Wisconsin Power & Light Co.
(1956),
“If against any other domestic corporation to the president, vice president, superintendent, secretary, ... or managing agent.”
What distinguishes Carroll from the case at bar is that the statute involved in Carroll rested upon a determination of whether the person there served aсtually possessed the power and authority of the kind normally commensurate with the individuals of the enumerated class upon whom service had to be made. In Carroll, supra, the court, at page 494, stated:
“Both terms [superintendent and managing agent] relate to a person possessing and exercising the right of general control, authority, judgment, and discretion over the business or affairs of the corporation, either on an over-all or part basis, i.e., everywhere or in a particular branch or district.” (Emphasis added.)
Sub. (5) (a), however, is framed in the alternative. If an “officer, director or managing agent of thе corporation” cannot be personally served, then the summons can be left “with the person who is apparently in charge of thе office.” The use of the word “apparently” can only refer to what is apparent to the person actually serving the summons. Herе, Schmidt was referred to Vetta by the receptionist, Mrs. Brickner, who, herself, testified that all process servers who would not state the precise nature of the action would be sent to Mr. Vetta because he was in charge and because she would not know who else to cоntact. Vetta himself testified that he had accepted service of summonses numerous times prior to November 20, 1969, and on at least onе occasion it had been a summons in a products liability action against Square D, all without challenge by his corporate employer.
Although Vetta testified that he was not “in charge” the finding by the trial court that he appeared to
Square D contends that even assuming Schmidt was justified in drawing the inferеnce that Vetta was “apparently in charge of the office,” the “office” referred to in the statute is the office of the offiсer, director or managing agent of the corporation and not the general corporate offices. Although the trial court sо concluded, it nevertheless stated:
“. . . I think it may well be that in some instances it would be unreasonable for a process server to conclude that someone outside of the immediate geographical office of the officer, director, or managing agent was aрparently in charge of ‘the office,’ but I don’t think that that is true in the instant case, where the process server was directed to Mr. Vetta, admittеdly with no conclusive statement with regard to his authority to accept the process in question, but directed, nevertheless, for the resolutiоn of his problem, to Mr. Vetta, and in spite of Mr. Vetta’s disclaimer of being the ‘man in charge’, in view, of Mr. Vaughn’s engagement and unavailability. I find it not unreasonable for the process server to infer and conclude that Mr. Vetta was in fact in charge, and I think that that inference is bulwarked by the cirсumstance that he had in fact accepted process of the kind in question earlier and subsequently to the service in the specific instance.”
The analysis of the statute by the trial court was correct. Although the statute refers to the “office” of the “officer, director or managing agent,” this requirement loses significance where, as here, this office was but a few feet from the office of the individual actually served, and who the process server was specifically directed to serve in the temporary absence of the corporation officer. Moreover, to hold that while Vetta was authorized to accept process in matters relating to employee relations, while at the same time incompetent
We concluded that the process server’s conclusion that Mr. Yetta was “apparently in charge of the office” was reasonable under the facts, and that the fundamentals of process, to wit: notice and knowledge, had been accomplished. We further conclude that sec. 262.06 (5) (a), Stats., was complied with.
By the Court. — Order affirmed.