156 Ky. 723 | Ky. Ct. App. | 1914
Opinion of the Court by
Affirming.
March. 29, 1910, the appellee, Licking Coal & Lumber Company, instituted an action in the Bath Circuit Court to recover of the appellant, S. B. Reese Lumber Co., $783.36 alleged to be due it for timber sold and delivered the latter in the year 1907. On the 6th day of October, 1910, judgment was rendered in the court mentioned in
In other words, the grounds relied on by appellant for vacating the judgment and obtaining a new trial were: First, that fraud was practiced by appellee in obtaining judgment; second, that appellant was by unavoidable casualty and misfortune prevented from appearing and making defense to the action. A general demurrer was filed by appellee to the petition which the circuit court overruled. Thereupon it filed answer traversing the averments of the petition; and after the taking of proof by the parties and submission of the case, judgment was rendered by the circuit court dismissing the action, and from that judgment this appeal is prosecuted.
The fraud alleged in the petition is that the timber, for the price of which appellee obtained judgment, had not been sold by it to appellant but to S. B. Reese, its vice president and manager as the agent of one George Francis, who, it is claimed, was the actual purchaser of the timber and the only person indebted to appellee therefor. This was denied by the answer and as to- this issue of fact there was a contrariety of evidence, the weight of which, in our opinion, conduced to show appellant to have been the purchaser of the timber. In our view of the case, however, it will be unnecessary to pass upon this issue as appellant has failed to establish its second and essential ground relied, on for a new trial, namely: unavoidable casualty or misfortune which prevented it from appearing or making defense to the action. The unavoidable casualty or misfortune alleged arises out of the claim upon the part of the appellant that it was never served with summons in the action in which the judgment was obtained by appellee, and therefore it had
“Executed on S. B. Reese Lumber Co., by delivering a true copy of the within summons to William Cook of Salt Lick, Kentucky, on May 9, 1910—this 9th day of May, 1910.
“Seth Botts, S. B. C., by Cole Barnes, D. S.”
Being later advised of the insufficiency of this return, the sheriff on October 5, 1910, the day before the judgment in appellee’s favor was rendered, by leave of the court, amended the return upon the summons as follows:
“By leave of court I now amend my return on this summons. I executed this summons on the 9th day of May, 1910, upon the within named S. B. Reese Lumber Co., by delivering a true copy of this summons to William Cook, of Salt Lick, Kentucky. Said William Cook being the person designated by defendant upon whom process may be served for said S. B. Reese Lumber Co., as appears from the records on file in the office of Secretary of State of Kentucky. This 5th day of October, 1910.
“Seth Botts, S. B. C., by Cole Barnes, D. S.”
The return of the sheriff by his deputy, as amended, positively shows due service of the summons upon Cook as appellant’s agent and it is not alleged in the petition in this case either that appellee, the sheriff, or his deputy, was guilty of fraud in the matter of serving the summons upon Cook, nor is it alleged that there was any mistake made by the officer in the manner of its service or in amending the return thereon. It is true Cook evasively testified that he did not understand from what passed between himself and the deputy sheriff that the summons had been served on him; but the testimony of Cook, even had it been more definite, was incompetent to impeach the officer’s return upon the summons. Section 3760, Kentucky Statutes, provides:
“Unless in a direct proceeding against himself or his sureties, no fact officially stated by an officer in respect of a matter about which he is by law required to make a
If the testimony of Cook could be regarded as admissible for any purpose it is contradicted, not only by the corrected return on the summons, but also by Barnes, the deputy sheriff, and J. J. Nesbett, appellee’s attorney, who was with that officer when the summons was served. But the return on the summons, being placed by the statute beyond the reach of such collateral attack, must be accepted as conclusive evidence of the proper service of the summons. Thomas v. Ireland, 88 Ky., 581; Bramlett v. McVey, 91 Ky., 151; Pribble v. Hall, 13 Bush 61; Cumberland Bank v. Slusher, 102 Ky., 415.
It is, however, further contended by appellant, and was testified by Cook, that the latter was not its agent or in its employ at the time of the service of the summons upon him, and that he never notified appellant of its service or of the pendency of the action, This contention is also without merit. It appears from the uncontraclicted testimony of C. H. Yansant, Assistant Secretary of State, found in the record, that there is on file in the office of the Secretary of State at the capitol, a written statement received from appellant, which reads as follows:
“Washington, Pa., Feb. 12,1904.
“To the Secretary of State,
“Frankfort, Ky.,
“Sir: — I hereby give notice that the place of business for the S. B. Reese Lumber Co., in Kentucky, is at Farmers, Kentucky, on the west side of Licking river in Bath county — and that William Cook, of Salt Lick, Kentucky, is our agent thereat, upon whom process may be served in any suit that may be brought against our company within the State of Kentucky. Done at Washington, Pa., this 12th day of February, 1904.
“James S. Forsythe, Secretary.”
As appellant, though doing business in Kentucky, is a foreign corporation, incorporated under the laws of Pennsylvania and having its chief office at Washington in that State, the above statement was duly filed in the office of the Secretary of State of Kentucky as required by section 571, Kentucky Statutes, which provides: “All corporations except foreign insurance companies formed under the laws of this or any other State, and
It further appears from the testimony of Yansant that since filing the above statement appellant has not sent .to the Secretary of State or filed in his office any other statement from its president or secretary giving any change in the location of its office in this state, or in the name of its agent thereat upon whom process can be served; therefore William Cook, upon whom the service of summons was had in the action in which appellee obtained judgment against appellant, remains and is still the latter’s agent upon whom process must be served.
The language of the statute supra, leaves no doubt of its meaning; and, as held in Oliver Company v. Louisville Realty Co., 156 Ky., 628, its provisions are so mandatory that a foreign corporation cannot by suit enforce a contract entered into in the execution of its business in this state without a compliance with its provisions requiring the filing in the office of the Secretary of State of the written statement designating its place of business therein and its authorized agent thereat upon whom process may be served. It is manifest, therefore, that William Cook, upon whom service of the summons in the action in which appellee obtained judgment was had, was, at the time of such service, appellant’s agent and the proper person upon whom to serve it. It is not material that he was not at the time of the service of the sum
No court has ever granted the unsucessful litigant a new trial upon the ground that the negligence of himself or his agent prevented him from making his defense to the action. In this case both appellant and its agent, Cook, according to their own showing, were guilty of negligence; the former in failing to advise the public through the filing of the necessary written statement with ihe Secretary of State that Cook was not its agent or the proper person upon whom to serve process, and the lat
Wherefore the judgment is affirmed.