125 P. 734 | Okla. | 1912
October 8, 1909, defendant in error, plaintiff below, brought suit in the superior court of Muskogee county against the plaintiff in error, defendant below, to recover judgment on a certain policy of fire insurance theretofore issued by said defendant to plaintiff. The defendant in error is a New York corporation; the plaintiff in error a domestic corporation. Summons was issued October 8, 1909, directed to the sheriff of Muskogee county. The return thereon is in the following language:
"State of Oklahoma, Muskogee County — ss.: Received within summons on this the 8th day of October, 1909, and, as commanded therein, made search for the president, vice president, secretary and treasurer of the Oklahoma Fire Ins. Co., and, failing to find any of said officers of said defendant company in my county, I summoned the defendant, the Oklahoma Fire Ins. Co., on this the 9th day of October, 1909, by delivering a certified copy of the within summons, with all of the indorsements thereon, to Eck E. Brook, one of the directors of said company; he being the highest officer of said defendant, the Oklahoma Fire Insurance Company, to be found in my county. In witness whereof, I have hereunto affixed my hand and seal on this the 9th day of October, 1909. R. B. Ramsey, Sheriff. J. M. Brucker, Deputy."
Thereafter, and on the 13th day of October, 1909, the defendant corporation appeared specially, and filed its motion to *151 quash the summons and purported service thereof, claiming that said summons was not issued and returned according to law, and that it was not served upon any officer or agent of defendant corporation, and that the court did not thereby acquire jurisdiction over said defendant. This motion was overruled and exceptions saved, and the action of the court is assigned as error.
Section 5604, Comp. Laws 1909, provides that:
"A summons against a corporation may be served upon the president, mayor, chairman of the board of directors, or trustees, or other chief officer; or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk or managing agent; or, if none of the aforesaid officers can be found, by a copy left at the office or usual place of business of such corporation, with the person having charge thereof."
Where the statute points out a particular method of serving process upon domestic corporations, such method must be followed. Great West Mining Co. v. Mining Co.,
That there must be a compliance with the statute is, perhaps, nowhere better expressed than by the Supreme Court of the United States, in Amy et al. v. City of Watertown,
"The question, then, is reduced to this: Whether, in case the mayor has resigned, and there is no presiding officer of the board of street commissioners (a body which seems to take the place of the common council of the city for many purposes), service of process on the city clerk and on a conspicuous member of the board is sufficient. If the common law (which is common reason in matters of justice) were permitted to prevail, there would be no difficulty. In the absence of any head officer, the court could direct service to be made on such official persons as it might deem sufficient. But when a statute intervenes and displaces the common law, we are brought to a question of words, and are bound to take the words of the statute as law. The cases are numerous which decide that, where a particular method of serving process is pointed out by statute, that method must be followed, and the rule is especially exacting in reference to corporations. Kibbe v.Benson, 17 Wall. 624, 21 [L.Ed.] 741; Alexandria v. Fairfax,
The fact that the defendant in the above case was a municipal corporation does not distinguish the rule announced from the instant case.
A number of the states have enacted that service on a corporation may be made upon a director. Washington, A. Georgetown R. Co. v. Brown, 17 Wall. 445, 21 L.Ed. 675;Pennsylvania R. Co. v. Bennett, 47 N.J. Law, 275; Delaware,etc., Ry. Co. v. Ditton, 36 N.J. Law, 361; Grubb v. LancasterMfg. Co., 10 Phila. (Pa.) 316; Commonwealth v. Wilmington,etc., R. Co., 2 Pearson (Pa.) 408; Webb v. Cape Fear Bank,
There is, however, no such statute in this state, though the statute specifically provides that service of summons may be had upon the chairman of the board of directors. The return of the officer does not show that Eck E. Brook was the chairman of the board, but, instead, that he was one of the directors of the corporation. The fact that the statute provides that summons may be had on the chairman of the board of directors speaks not only affirmatively, but it also speaks negatively. In such circumstances, the maxim, Expressio unius est exclusioalterius, has a particular application. In Alabama TennesseeR. Co. v. Burns-McKibbin Co.,
The assignment raises a question entirely different from that passed upon by this court in Ravia Granite Ballast Co. v.Wilson,
The motion to quash the service of summons should have been sustained. Exceptions being saved to the action of the trial court in overruling the motion, the fact that defendant below afterwards answered and went to trial does not constitute a waiver of its right to urge, as ground for reversal, the adverse decision on the motion to quash. Chicago Building Mfg. Co. v. Pewthers,
For the reason given, the judgment of the trial court should be reversed, and the cause remanded.
By the Court: It is so ordered. *155