Higgs v. Sperry.

CoNHOR, J., after stating tbe facts: Ijl this court plaintiffs’ counsel insisted tbat Ilis Honor should bave considered' tbe complaint upon tbe motion. While we do not think that tbe complaint upon motion to dismiss for want of service, is properly before tbe court, we bave examined it and find nothing affecting tbe merit of tbe motion to dismiss. It is also insisted tbat tbe affidavits of Sperry and Anthony are conflicting. It will be noted tbat His Honor does not find tbe facts upon which bis judgment dismissing tbe action is based — he simply finds tbat all of tbe facts set out in the several affidavits are true. We are of tbe opinion tbat be should bave found tbe facts, which would bave been conclusive. If we discovered any substantial contradiction between the several affidavits, it would be our duty to remand tbe case to tbe Superior Court- for tbe purpose of finding tbe facts so that upon appeal we would simply pass upon tbe question of .law presented. While tbe criticism of plaintiffs’ counsel is ingenious we do not think tbat in so far as tbe two vital questions— whether the defendant was on the ,22nd of March, 1905, doing business in this State or whether Anthony was such an officer or agent of tbe corporation as contemplated by the statute for tbe service of summons — are concerned, there is any substantial variance. The criticism tbat they are not worthy of credit or disingenious, is not open to us. Tbe statute, Code, 217, provides tbat service of summons may be made upon a corporation by delivering a copy thereof to the president or other bead of the corporation, secretary, cashier, treasurer or director, managing or local agent thereof: Pro *302 vided, That any person receiving or collecting moneys within this State for or on behalf of any corporation of this or any other State or government shall be deemed a local agent for the purpose of service of summons. In respect to a foreign corpqration, service can be made only when it has property within this State or the cause of action arose therein, or when the plaintiff resides in this State or when such service can be made within the State personally upon the president, treasurer or secretary thereof. As the defendant company, a foreign corporation, had ceased to do any business in this State on the 22nd of March, 1905, it would seem clear that service could be made only upon the officers named in the statute. We do not think a traveling auditor, such as Anthony was found to be, is such an officer. If he was to be considered as a local agent he expressly denies that he received, or was authorized to collect or receive money for the corporation and His Plonor has found this to be true. It is said that if the service be upon any person connected with the corporation who would probably apprise the managing officers of such service, it is sufficient. This suggestion would appeal to the Legislature in providing for service on corporations, but cannot justify us in straining the language of the statute beyond its natural and proper meaning. It is sometimes difficult to define the terms “managing or local agent” as applied to corporations, but in this case it is not claimed that Anthony was a managing agent, and the finding of the judge excludes the idea that he received or collected money. It is true that he presented an account to the plaintiffs and requested payment to himself, but he received no money and says that he presented the account without authority, and His Honor so finds. Clinard v. White, 129 N. C., 250, is clearly distinguishable from this case. The person upon whom the service was made was clearly a “managing agent.” In Moore v. Bank, 92 N. C., 590, the court simply held that an attorney of a foreign corporation was not an agent upon whom process *303 could be served. Jester v. Packet Co., 131 N. C., 54, beld that when the president of such corporation was in the State, service could be made upon him. See Womack’s Pr. Corp., 656. The conclusion which we have reached is in harmony with the decisions in New York, where the statute is substantially as ours, as shown by the cases cited in the brief. The judgment must be Affirmed.