Mosely v. First National Bank

Beck, P. J. We are of the opinion, that, on the trial of a traverse to a sheriff's return on a summons of garnishment, which recites that service has been made upon the garnishee banking corporation by handing the summons to a named person, not the president of the bank, as agent in charge of the office and business of the garnishee in the county of the service, and the issue is whether service upon the garnishee banking corporation was thereby legally made, it is error for the judge to instruct the jury in effect that they should find for the garnishee banking corporation if it has been shown by .a preponderance of testimony that service was not made upon the agent actually in charge of . the .“business [397] and office.” The exception to this charge, on the ground that the jury were thus required to find the person served was the agent in charge of both the “business and office” of the corporation in the county at the time of the service, was well taken. If the person upon whom the summons of garnishment was served was the agent of the corporation in charge, of its office, this was'sufficient service upon the corporation; or if he was in charge of the business of the corporation, that would be sufficient service. “Service of a summons of garnishment upon the agent in charge of the office or business of the corporation in the county at the time of service shall be sufficient.” Civil Code (1910), § 5270. The word “or” in some connections may mean “and,” or the word may introduce an explanatory word or phrase. But in this statute the word “or” in the expression “in charge of the office or business” is used in its disjunctive sense. The president of a chartered bank, being its alter ego, may very properly, in the absence of evidence to the contrary, be presumed, as a matter of law, to be clothed with the authority to take charge of and manage its business, and he is not divested of that authority by the mere fact that in his absence from the office another agent of the bank is left in charge of the office. Third National Bank v. McCullough, 108 Ga. 249 (supra); North Ga. Banking Co. v. Fancher, 23 Ga. App. 683 (supra). The latter while left in charge of the office may have certain duties in connection therewith to perform, and have authority, in particular matters, to direct the other agents or officials of the corporation, while the president, though absent from the office temporarily, would, in the general sense of the word, be in charge of the business of the corporation in that county. In case of the absence of the president still having charge of the business of the corporation, service upon the agent in charge of the office of a summons of garnishment would be sufficient. If in the present case the agent of the corporation upon whom the service of the summons of garnishment was made was in charge of the office, though the presiident was in charge of the business of the corporation generally in the county, the service, as we have said above, was sufficient. From the case of Holbrook v. E. & T. H. R. Co., 114 Ga. 4 (39 S. E. 938), it appears that the return of service of the summons of garnishment was in the following words: “Served the within by serving summons of garnishment issued on within affidavit and [398] bond on Evansville and Terre Haute R. R., by serving D. H. Hills-man, Gen. Sou. Agt., S. L. Rogers, Trav. Frt. Agt., and R. L. Sams, Commercial Agt., each personally at 3 p. m., they being in charge of office.” And it was held in that case that due and legal service of the summons of garnishment upon the railroad company was not shown by the entry quoted. It was pointed out that the entry was defective in failing to disclose that the individuals served were the agents of the company, and in not affirmatively showing that the “office” of which they were in charge was its office. But the negative pregnant involved in this holding is equivalent to a ruling that if the entry had shown that the individuals named were agents of the railroad company sought to be garnished, and that they were in charge of its office, such an entry would have shown due and legal service of the summons of garnishment. And this is expressly ruled in the case of Holbrook v. Railroad Co., 114 Ga. 1 (39 S. E. 937), where it was held that “A return showing that a summons of garnishment was served upon a railroad company therein designated, by serving personally a named individual described as ‘sole agent of the Co., in charge of their office’ at a specified house in a city located in the county wherein the garnishment proceeding was pending, met the requirements of the Civil Code [1895], § 4710 [1910, § 5270], which prescribes the manner of serving garnishment processes upon corporations.” And in the case of Seaboard Air-Line Ry. v. Browder, 144 Ga. 322 (87 S. E. 6), it was said: “An agent does not have 'to have supervision over all parts of the company’s business, in order to fulfill the requirement of the statute. A railroad company may divide up its business into various departments conducted in different offices. But a plaintiff is not obliged to ascertain who has charge of one kind of business, and who of another, and select the right agent at his peril when he desires to have a garnishment served. The requirement is to give notice to the company, by serving an agent in charge of its office. That agent when served has a duty as to his principal. But the company can not escape liability by asserting that service should have been made on another agent at another office in the same city, who had more direct charge of the freight business, or other business, though freight happened to be the thing subject to garnishment. To so hold would’ put an almost or quite impossible burden on a person wishing to serve a garnish [399] ment. Where the company puts an agent in charge of a ticket-office, it may be served with summons of garnishment through that agent, whether the company intrusts to him all of its business in that locality, or only a part of it.” It follows from what we have said above that the first" question should be answered in the affirmative. And the same reasoning and same authorities require an affirmative answer to the second question; that is, that the charge of the court, stated in substance in these two questions, was error. And we do not think that the fact that the amended return of service as made by the sheriff recites that the person served was "agent in charge of the office and business of the garnishee corporation” can affect the ruling that a return of service upon the agent of that corporation in charge of its office would be sufficient. All the Justices concur, except Gilbert, J., absent for providential, cause.