Sherman v. Buffalo Bayou, Brazos & Colorado Railroad, 21 Tex. 349

Sherman v. Buffalo Bayou, Brazos & Colorado Railroad

21 Tex. 349 | Tex. | 1858

Roberts, J.

This was a suit by plaintiffs in error against defendant in error, on an account which had accrued more than two years before the commencement of the action. Defendant in error pleaded the Statute of Limitations of two years in bar of the suit. The plaintiffs in error, to avoid the effect of this plea, replied that “ the President, Treasurer and Secretary of the defendant, each and every one of them absented themselves from the State of Texas, and so continued absent from this State and the jurisdiction of the Court, for the space of four years prior to the commencement of this suit, so that the process of the law could not be served personally on the officers of defendant.”

Whether or not these facts bring the case within the excep*357tion of the Statute of Limitations contained in the 22nd Sec. of the Statute, is the question in this case. That reads as follows : “ That if any person against whom there is or shall be cause of action, is or shall be without the limits of this Republic, at the time of the accruing of such action, or at any time during which the same might have been maintained, then the person entitled to such action shall be at liberty to bring the same against such person or persons after his or their return to the Republic. And the time of such persons’ absence shall not be accounted or taken as a part of the time limited by this Act.”

The reason why this statement does not bring the case within this exception is, that the absence of the officers of the corporation beyond the limits of the State, is not the absence of the defendant—the corporation itself.

The corporation being created in this State, and carrying on its business in this State, must be treated, when it becomes a litigating party, as a resident of this State, and the absence of its officers does not necessarily carry such ideal person beyond the limits of the State. (Louisville Railroad Company v. Letson, 2 Howard U. S., 558-9 ; McQueen et al v. Middletown Manufacturing Company, 16 Johns. 6.)

Our Statute of 1853 requires every railroad’Company to keep a principal office at some place on the line of the road, and authorized process to be served, either by citing the President or Secretary, or by leaving the writ at such principal office.

While such office is kept open on the road, and the party has full opportunity to obtain service on the Company, it cannot be truly averred that the corporation is beyond the limits of the State. Actual service of process on the corporation, as upon an ordinary person, is impossible ; and the State has provided what shall be a substitute for it; which it has a perfect right to do. (Owners, &c. v. Mayor, &c. of Albany, 15 Wend. 376. Neither mode is personal service on the Compa*358ny; either one of the modes is as effective as the other, in every respect relating to the validity, force and effect of the judgment that may be rendered. We are opinion therefore, that the Court below decided correctly in determining, that the Statute of Limitations barred the action, notwithstanding the facts alleged in replication.

Judgment affirmed.