Nobili v. Alaska Gastineau Mining Co.

JENNINGS, District Judge. In considering the’ matter of the service of the summons here, it may” be conceded, as contended for by movant, that delivery of summons and complaint may be made upon a mere clerk of 'the corporation in those cases only where none of the superior officers named in the statute is found or resides or has an office in the district; and we may dismiss from consideration any question of the delivery of the process to the president, or other head, secretary, or cashier, because, by the admitted facts, there were no such officers of the defendant corporation in Alaska; so we have to do here with the managing agent only. Section 878 provides: The summons is to be served by delivery of copy (1) to the managing agent; (2) if the managing agent is not found, and if he does not reside and does not have an office in the district, then the copy may be delivered to a clerk. This is to say that, if either one of the three contingencies exist, the summons is not to be delivered to a mere clerk. It also implies, although it does not expressly state, that if the managing agent is not found, but has an office in the district, it may be served upon him by delivery at that office; otherwise, what will “residing or having an office in the district” have to do with the matter? Those words are used; they mean something. They cannot mean anything, unless the evident omission is supplied by construction. [143] It will be observed that subdivisions first and second of section 878, which refer to service on corporations, do not use the word “personally”; whereas subdivisions third and fourth of said section, referring to service upon individual defendants, do use that word. I think that the nonuse and the use of that word “personally” in the said sections is not without significance. If Thane had been sued and had not been found, the process could have been delivered “to some person of the family above the age of fourteen years, at the dwelling house or usual place of abode of the defendant.” He is not sued, but he stands for, and represents, the corporation which is sued, and, so standing, there can be no doubt that in his absence the summons can be delivered to some person of the family over the age of 14 years at his dwelling house or usual place of abode. State Ins. Co. v. Oklahoma, 21 Okl. 823, 97 Pac. 574. Such service would be effective as service on the corporation, by analogy to the provisions of the statute as to service on an individual who cannot be found, because the statute does not prescribe the manner of service on the managing agent, and in the absence of such statute the manner of service is to be assimilated to the manner of service on an individual defendant who is not found. 21 Okl. 823, 97 Pac. 574¿ Now, under our statute, the analogy would be equally applicable to cases where the managing agent “has an office within the district,” for the language of the statute is “reside or have an office in the district.” The corporation’s residence is at the general offices of the company; and for the marshal to leave the process, in Thane’s absence, at the general. offices of the company, with Thane’s private secretary, who had charge of those offices, may well be held, by analogy or assimilation, to have been service upon Thane—not as an individual, but as the managing agent of the company. It may be said that the analogy is not complete, because the. return does not show that Hurley is a member of the family above the age of 14 years. The private secretary of an official may well be held to be a member of that official’s official family, and even if the court did not know as a fact that Mr. Hurley is a grown man, nearer 40 than 14 years of age, it will assume, in the absence of a showing to the contrary, that the private [144] secretary of a managing agent of a mining company left in charge of the office is, ex vi termini, over 14 years of age. The service will he held to be good; not, however, on account of the fact that Hurley is a clerk, but on account of the fact that, the managing agent being not found, the delivery is shown by the record to have been made to a responsible person at the office of the managing agent, to wit, the private secretary of the managing agent, in charge of the office of said managing agent. In the cases of Settlemier v. Sullivan, 97 U. S. 447, 24 L. Ed. 1110, and of Trullenger v. Todd, 5 Or. 37, the defendants were individuals and the cases decide only this: That substituted service will not be sufficient, unless it be shown that the individual himself cannot be found. Those cases are in reference to the application of subdivision fifth of section 878, C. F, which expressly provides that the process must be served upon the defendant personally, and that it is only when he cannot be found that it can be served on a member of his family; whereas, the case at bar does not come under that subdivision at all, but it does come under subdivision first of the section, which contains no such provisions as subdivision fourth. Neither can there be any quarrel with the holding in the case of Miller v. Norfolk (C. C.) 41 Eed. 431, but the statute of West Virginia is not like our first subdivision of section 878; nor with the holding in Collins v. American (C. C.) 96 Eed. 133, for the statute of Illinois likewise differs from ours.