J. B. Blades Lumber Co. v. Finance Co. of America

AdaMs, J. We are concerned not so much with the affidavits as with the court’s findings of fact based upon the affidavits; and as the findings are supported by the evidence they are as conclusive as the verdict of a jury and are not subject to review. Matthews v. Fry, 143 N. C., 384; Cox v. Boyden, 175 N. C., 368; Tyer v. Lumber Co., 188 N. C., 268; Tinker v. Rice Motors, Inc., 198 N. C., 73. The plaintiff is a domestic and the defendant a foreign corporation. The plaintiff undertook to bring the defendant into court by the service of process upon F. J. Miller. The question is whether the pretended service was effective against the defendant. When an action is brought against a corporation the summons shall be served by delivering a copy thereof to the president or other head of the corporation, secretary, cashier, treasurer, director, or managing or local agent of the corporation. Any person receiving or collecting money in this State for a corporation of this or any other State or government is a local agent for the purpose of service; and such service can be made in respect to a foreign corporation only when it has property, or the cause of action arose, or the plaintiff resides, in this State, or when it can be made personally within the State upon the president, treasurer, or secretary. C. S., 483(1). Was Miller a local agent of the defendant? In Moore v. Bank, 92 N. C., 591, the Court said: “The term local pertains to place, and a local agent to receive and collect money, ex vi termini, means an agent residing either permanently or temporarily for the purpose of his agency, and was not intended to embrace a mere transient agent.” In a later case this definition was applied to a statement of facts impressively similar to those in the present case. Tinker v. Rice Motors, Inc., supra. Whether a person is the agent of another is to be determined by the nature of the business and the extent of the authority given and exercised; and to be an agent such person must be regularly employed and have some measure of control over the business, or some feature of the business, entrusted to him. Whitehurst v. Kerr, 153 N. C., 76. A traveling auditor is not a local agent (Higgs v. Sperry, 139 N. C., 299) ; and a single instance of receiving money can by no reasonable interpretation be considered the “receiving or collecting” of money on behalf of a corporation. Kelly v. Lefaiver, 144 N. C., 4. *288 Upon the authority of these and other cases dealing with the subject the judgment of the Superior Court must be affirmed. Miller was not a local agent of the defendant; he is a nonresident and was “transiently in this State” on a special and restricted mission; he went to New Bern on 27 October and on the same day “departed to perform similar duties,” as his employer had directed. The defendant has never had any property or office or place of business in this State. Judgment Affirmed.