Harrison v. Carbon Timber Co.

Brard, Justice;. The plaintiff in error commenced this action in the District Court of Albany County against the defendants in error to recover damages alleged to have been sustained by him by reason of the negligence of defendants in conducting log drives in Rock Creek in the years 1901 and 1902. Summons was issued directed to the sheriff of Albany County and was there served upon the defendant Vagner personally, and service was attempted to be made at the same time and place upon the defendant Carbon Timber Company, a domestic corporation, by delivering a copy of the summons to Vagner, he being the president of said company. Summons was issued to Carbon County and was there served upon the other defendants, Meyer and Oleson. The Timber Company appeared specially by its attorneys and moved to quash and set aside the summons and the return of the sheriff thereon for the following reasons: 1. That the return of the sheriff did not show service of summons upon the company within the County of Albany. 2. That the principal place of business of the company was not within Albany County. — 256 — 3. That the residence of the company was not situated within Albany County, nor was the corporation situated within said county. 4. That said corporation had no office or place of business and did not conduct its operations in Albany County. This motion was supported by affidavits showing that the business operations of the company were conducted in Carbon County, where it had its principal office; that it had no office or other place of business outside of said county or any residence elsewhere, and. that it did not conduct its operations in Albany County and was not situated there, and had no office or place of business there. These facts are not controverted. The motion was sustained by the District Court, and the only questions in the case are whether or not that decision was right. It is contended by counsel for the company that it could not be sued rightfully in Albany County, it being a corporation organized and existing under the laws of this state and having its residence, principal office and place of business in Carbon County and having no office or place of business elsewhere; and that service could not be made upon it by service upon its president outside of the county in which it was situated, or had its principal office or place of business. The questions thus presented must be determined upon the proper construction of our statutes as found in Sections 3496 and 3505, Chapter 5, inclusive; and Sections 3510 and 3516, Chapter 6, Revised Statutes, 1899, and Chapter 53, Session Daws, 1903. The first four of those sections relate to the place where certain local actions must be brought, and it is conceded that this case does not come within either of those provisions. Section 3500 is as follows: “An action other than those mentioned in the first four sections of this chapter, against a corporation created under the laws of this state, may be brought in the county in which such corporation is situate, or has its principal office or place of business; but if such corporation is an insurance company, the action — 257 — may be brought in the county wherein the cause of action, or some part thereof, arose.” Sections 3501 and 3502 provide that certain actions against the owner or lessee of a line of mail stages, or other coaches; against a railroad company; and against a turnpike road company, may be brought in any county through or into which such road or line passes, or in which any part of the road lies. Section 35°3 provides that when the charter prescribes the place where a suit must be brought, that provision shall govern. In this case it is not claimed that its charter provides where the corporation must be sued. Section 3504 relates to actions against non-residents and foreign corporations. Section 3505 is as follows: “Every other action must be brought in the county in which a defendant resides or may be summoned, except actions against an executor, administrator, guardian or trustee, which may be brought in the county wherein he was appointed or resides, in which case summons may issue to any county.” Section 35x0 provides: “When the action is rightly brought in any county, according to the provisions of Chapter 5 of this title, a summons may be issued to any other county, against one or more of the defendants, at the plaintiff's request; but no maker or acceptor, or if the bill is not accepted, no drawer of an instrument for the payment of money only, shall be held liable in an action thereon, except on warrant of attorney, in any other county other than the one in which he, or one of the joint makers, or acceptors or drawers resides or is summoned.” There is no question raised by the motion in this case that the action was not rightly brought in Albany County against the defendant Vagner, nor is it claimed that, had the defendant Carbon Timber Company been an individual instead of a domestic corporation with its principal office and place of business in Carbon County, it would not, under the facts alleged in the petition, have been rightly made a defendant in the action. But it is contended that, because it is a corporation created under the laws of this state, it — 258 — could not be sued elsewhere than hi the county of its residence, whether it was the only defendant or was sued jointly with a resident of the county in which the action was commenced, that county being other than that of the residence of the corporation, and that Section 3500 limits, under all circumstances, the right to bring an action against such corporation to the county in which it is situate, or has its. principal office or place of business. That section provides, where a suit may be brought against such a corporation; and it may be conceded that if it is the sole defendant it must be brought in the county of its residence; but we fail to find anything in the statute prohibiting the joining of a corporation with other defendants where there is a joint liability. In this'action the defendants are charged as joint tort-feasors and are jointly and severally liable, if the allegations of the petition are true. It is provided in Section 3480 that, “any person may be made a defendant' who has. or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of a question involved therein.” If,, therefore, the corporation was rightly joined as a defendant with Vagner, and the suit was rightly brought against him in Albany County, it was then rightly brought in that county and‘the court of that comity would acquire jurisdiction of the person of the defendant company by proper service of summons upon it, unless Section 3500 is exclusive. As-stated above, it may be conceded that it is so in actions where the corporation is the only defendant; but if it beheld to apply to actions in which the corporation is properly joined with other defendants, then the statute would prohibit the joining of two domestic corporations jointly liable, in an action, either on contract or in tort, where they are residents of different counties. The policy of the law has-always been to avoid a multiplicity of suits, and Sections 3480 and 3510 were evidently enacted for that purpose. The words “every other action,” as used in Section 3505, were not intended, we think, to exclude actions such as the — 259 — one at bar, where several defendants might be rightly-joined. This construction is directly supported by the decisions of the Court of Common Pleas in Ohio in the cases of Stanton v. Enquirer Co. et al., 7 O. N. P., 589, and Baldwin v. Wilson et al., id., 506; and by the Circuit Court of Ohio in B. & O. R. R. Co. v. McPeek et al., 16 O. Cir. Ct., 87. While these decisions are not by courts of last resort, they are not without weight. And in City of Fostoria v. Fox, 60 O. St., 340, where the corporation was the sole defendant, the court, in considering Section 5038 of the Ohio statute, which is identical with our Section 3510, it is said: “This section can only apply where the action has been rightly brought in the county where commenced. This action had not been rightly brought in Hancock County, where the summons was issued to the sheriff of Seneca. It had not, in law, been brought at all; and could not be regarded as brought until the city had been rightly summoned. It is the only defendant to the action.” This language is not decisive, but indicative of the application of that section to actions where a corporation is a joint defendant. The case of Western Travelers' Acc. Ass’n. v. Taylor, 87 N. W. Rep. (Neb.), 950, is cited by counsel for defendant ; but in that case the insurance company was the sole defendant, and it was held that it could not be sued outside of the county of its residence under the facts alleged, but the question we are now considering was not in that case. An individual cannot be sued in a county where he does not reside, or cannot be summoned if sued alone; but when the action is rightly brought against him jointly with another in a county other than that of his residence, a summons may issue to and be served upon him in the county where he resides, and jurisdiction of his person be thus obtained; and we can see no good reason why the same rule should not apply to a corporation where it is a joint defendant. The .only reason suggested in argument of counsel, other than that claimed under Section 3500, is — 260 — inconvenience; but we are unable to discover wherein a corporation would be more inconvenienced in such a case than an individual. The construction we have placed upon Sections 3500, 3505 and 3510 gives force and effect to each and does violence to neither. We are of the opinion, therefore, that under the allegations of the petition the action was rightly brought in Albany County. We do not wish to be understood, however, as holding that by merely making a party a nominal defendant it would authorize the bringing of an action against a corporation or an individual, resident in another county. We come then to the question, can a domestic corporation be legally summoned in an action by making service upon its president outside of the county where it is situate, or has its principal office or place of business, and in a county where it has no office or agent and where it conducts no part of its operations? The provisions of our statutes for service of summons against corporations, such as the one in this case, are contained in Section 3516, Revised Statutes, 1899, and Chapter 53, Session Laws, 1903, and so far as applicable here are as follows: “A summons against a corporation may be served upon the president, mayor, chairman or president of the board of directors or trustees, or other chief officer, or if its chief officer be not found in the county, upon its cashier, treasurer, secretary, clerk or managing agent, or if none of the aforesaid officers can be found, by a copy left at the office or usual place of business of such corporation with the person having charg'e thereof.” The Session Laws above referred to provide for the appointment of an agent upon whom service may be made. The determination of this question depends upon the meaning of the word “county” as used in the portion of the section quoted above. If it means the county in which the action is brought, then service may be made in that county. If it means the county where the corporation is situate or has its principal office or place of business, it must be served — 261 — there, whether upon the president or other chief officer or otherwise. It is clear that the statute refers to a single summons; and a summons when issued shall be directed to the sheriff of the county ^commanding him to notify the defendant that he has been sued, etc. If the defendant is a corporation, the sheriff must first seek the president or other chief officer; if neither of them can be found, then he is to look for the treasurer or other officer named in the section, and if neither of them can be found, he may then leave a copy of the summons at the office or usual place of business of such corporation with the person having charge thereof. Now, it is apparent that if the summons is issued to the sheriff of the county in which the action is brought and no officer of the corporation can be found in his county, he could not go into another county and there serve it by leaving a copy at its office. Three methods of service are provided for, and if the word “county” as used in this section means the county where the action is brought, then the service could not possibly be made by the sheriff of that county by the third method; while if “county” means the county of the residence of the corporation, the service can be made in either of the three methods. In Western Travelers’ Acc. Ass’n. v. Taylor, supra, 950-4, it is said: “It is not reasonable to suppose that the Legislature intended search to be made by the sheriff, where there was no prospect that the officers or agents of the corporation would be found. The place to look for the officers or agents of a corporation is at the place of business of such corporation, and not in some county distant from its place of business, where there would be no reasonable expectation of finding them. The presumption is that officers of a corporation will be found at its place of business.” That case was a suit against an insurance company having its principal place of business in Hall County, Nebraska, and suit was commenced in Douglas County, and service attempted to be made upon the corporation by serving its secretary, who was found in Douglas Count)'', upon the business of the corporation out of which the suit arose, and it was held by the — 262 — Supreme Court of that state that the service was insufficient and gave the court no jurisdiction over the person of the defendant corporation. We are of the opinion that the county referred to in the section of the statute under consideration is the county where the corporation is situated or has its principal office or place of business, and not the county in which it may he sued as a joint defendant, and that summons against it in such case should issue to and be served in the county of its residence, unless service is made as provided in Chapter 53, Session Laws, 1903. This construction of the statute finds some support in City of Fostoria v. Fox, supra; B. & O. R. R. Co. v. McPeek, supra; Holgate v. Oregon Pac. Ry.. Co., 17 Pac. (Ore.), 859, and San Antonio & A. P. Ry. Co. et al. v. Graves (Tex. Civ. App.), 49 S. W., 1103, although most of these decisions were under statutes somewhat different from ours. Some objections are made to the sufficiency of the return; but as the ruling of the District Court is sustained for the reasons above stated, they need not be considered. The order of the District Court in sustaining the motion is affirmed. Affirmed. Potter, C. J., and Scott, District Judge, concur. Van Orsdel, J., having announced his disqualification to sit in this case, Hon. Richard H. Scott, Judge of the District Court of the First District, was called in to sit in his stead.