Merrill v. Montgomery

Campbell, J. Ejectment is brought upon an execution title under a judgment in favor of Montgomery against the bank of Calhoun county, and the most important question involved is whether the judgment was valid. Tbe declaration against the bank was filed March 16, 1858. On the same day an order for substituted service was made upon a showing that ordinary service could not be made. It is claimed that this order was not valid. The first objection is that it was not made by the court, but by the judge. It appears in the form of a motion in the special motion book, with a memorandum as follows: “ Granted. B. P. Graves, Cir. Judge.” Although an entry on the journal would be more regular, yet the practice of deciding motions in this way is quite common [75] at circuit, and is never, so far as we know, resorted to except when the court, is sitting. We think it must be assumed to be the action of the court. As the charter of the bank was a public law and expired in 1857, the regular service upon it, during the three years allowed for suits, must be, under Compiled Laws, section 4.886, upon either of the persons who may have been “the last presiding officer, president, cashier, secretary, or treasurer,” as in the case of active corporations it should be on the existing officers of those designations. Inasmuch as in all cases the regular service is on the same class of officers, we think the provisions for substituted service, where such officers cannot be found, must be held to apply as well in the one case as in the other, and to reach corporations acting and not acting. The sections harmonize in this way, and no intention appears to exempt one corporation more than another from service of process. Section 4885 provides that “if there be no such officer, or none can be found, such service may be made on such other officer, or member of such corporation, or in such other manner as the court in which the suit is brought, may direct.” We think the inability to find the actual and the last officers in the two several cases authorizes the same proceedings. Where service is made in any but the ordinary ways, the rule has always been that its regularity must appear, and unless the facts on which it appears to have been allowed are such as would make it come within the statutory conditions, it cannot be maintained. All extraordinary means of getting jurisdiction must be conformed to the ’ legal authority. — Webster v. Reid, 11 How. R., 437; Platt v. Stewart, 10 Mich. R., 260, and cases cited. In this case the jurisdiction depends on certain affidavits. [76] The statutory condition is, ‘•'if there be no such officer, or none can be found.” The affidavit shows that, " there is no officer of said corporation residing in this county,” except two persons shown to have been directors. This part of the affidavit is positive in form. But it does not say no officer is to be found, either in or out of' the county. The charter requires the president and directors to reside, not in the county but in the state; and by leaving the state to reside, their offices seem to be treated as ipso fado vacated.— Charter § 5, L. 1886, p. M8. Nothing is said concerning the residence of other officers. As it is quite common for corporation officers to reside in a different county from that where the office is kept, and yet to bo found there, non-residence does not satisfy the statute. There is a very serious inquiry, what showing will justify an inference that an officer is not to be found. The filing of the declaration, and showing cause, and granting the order in this case, were all contemporaneous. The statute contemplates some diligence in searching for the persons to be served after, and not before, suit brought. If suit had been commenced by summons or other writ there could be no immediate return of non est invenhzs. Unless such a state of facts should be shown as to indicate that there was no reasonable probability that such officers could be found, some effort, at least, should be made to find them, and it should appear in any case that inquiries had been made in such a way as to be likely to elicit the truth. For any thing that appears, the proper officers might all have been in the state and near by. The affidavit of service on Sidney Ketchum might have remedied this defect if it appeared that he was the last president or presiding officer. It simply says he ivas formerly [77] the acting president, “ and the only president thereof to the knowledge or belief of this deponent.” But it does not appear what means of knowledge, the deponent had. An officer, when he makes a return, assumes the responsibility of identifying the party served. But when service is made by a private person, unless lie swears he has knowledge, he should show, at least, on what he based his belief. Any one, with or without knowledge, could make such an affidavit as that made here. We think there is no valid order of substituted service, and no sufficient proof of regular service. But the question was not discussed on the argument, whether proof aliuncle could be made of the official character of Ketchum, or whether the return can be amended, and we shall not pass upon that point now. This makes it necessary to consider whether the court below was right in excluding evidence from the records, of a mortgage from the bank, under which defendants below claimed title. The mortgage purported to be sealed with the corporate seal, and signed by the president and cashier; but acknowledged by the cashier only. It was held in Benedict v. Denton, Walk. Ch. R., 336, that the corporate seal is presumptive evidence of valid corporate authority. It is the seal which completes the corporate contract, and the acknowledgment is to be made by the person representing the corporation in that act. Presumptively, if the seal is evidence of authority, the cashier, who is usually keeper of the seal, must be the proper person to affix it, and the act or acknowledgment of any other person would be superfluous. The object of acknowledgment is to obtain an official recognition of the person whose act gives the deed its corporate character as an act of the bank. And we think no other acknowledgment was necessary until it [78] should appear he had no right to act by himself. The record should have been received. The judgment must be reversed, with costs, and a new trial granted. Christiancy, Oh. J., and Cooley, J., concurred. Graves, J., did not sit in this case.