Kelly v. Lefaiver & Co.

Hoke, J., after stating the case: Our statute on this question (Revisal, sec. 440) provides, among other things, that *6 service of summons on a corporation may be made by delivering a copy thereof to a local agent of the company; and enacts further, “That any person receiving or collecting moneys in 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 this section.” And the sole question presented is whether George T. Leach was an agent within the meaning of the statute on whom service of process against defendant company could be properly made. It will be noted that the person in question was not an agent in the course of the company’s business while it was being operated, nor in closing out said business, nor in making general disposition of the company’s property after it had ceased to do business. In fact, he was not an agent of the company at all, nor even an employee in the ordinary acceptation of the term, but simply a caretaker — acting, as found by the Court, out of friendship and without salary or any pecuniary recompense. True, he sold out one. tank of lubricating oil for $4.50 and also sold $2.50 worth of gasoline, which he applied in payment of the watchman’s services; but we are clearly of opinion that this single instance of handling money'could, by no reasonable interpretation, be considered the “receiving or collecting moneys for or on behalf of the corporation” within the meaning of the statute referred to. This view finds support in the case of Moore v. Bank, 92 N. C., 590, and in no way conflicts with Copland v. Telegraph Co ., 136 N. C., 11, cited and relied upon by counsel for plaintiff. In the Copland case the person on whom process was served was beyond question the local agent of the company. He was in sole charge of the company’s property at the point, and in control of its business, and had “received messages from ships at sea for pay,” though “the office had not yet been opened up for general business. And the Court held that in such case it was not necessary that the person on whom *7 service should be made should have actually received money on behalf of the company to constitute him a local agent within the meaning of the act, if the facts otherwise showed that he was such local agent. Eor methods of service when a company has ceased to do business and no officer or local agent can be found on whom process can be served, see Eevisal, secs. 1243 and 1448. : In the present case, we think his Honor was correct in holding that there had been no legal service of- process, and the judgment dismissing the action for want of service is affirmed. Affirmed.