P. H. Laufman & Co. v. Hope Manfacturing Co.

The opinion of the court was delivered by Dixon, J. The first question in the case is, whether, under the supplement to the Practice act, approved May 3d, 1889 (Pamph. L., p. 334), an affidavit of merits is required from the defendant, to prevent the entry of judgment at the expiration of ten days after service of the declaration and notice to file such affidavit, in cases where the declaration and notice are served at the time of the service of the summons. Clearly, the first section of the supplement requires such affidavit only when the declaration and notice are served “after the defendant is in court;” but, as clearly, the third section provides for service of the declaration with the notice endorsed at the time of the service of the summons, and the design of this provision must have been to exact in such cases also the affidavit of merits, which is the only new feature brought by the supplement into our practice. While this is conceded, it is urged that where service is made under the third section, the ten days, within which the affidavit of merits must be filed, will not begin to run until the defendant is in court. This, however, is inconsistent with the plain language of the act, which always speaks of the date of the service of the declaration as the time from which the ten days shall be reckoned! The second question in the case is, whether service of the declaration and notice upon the secretary of a corporation is such service as this supplement requires. The first section requires service on the defendant personally, after the defendant is in court; the third section provides another time for service, but is silent as to the mode of service. The proper implication is that the same mode of service is [72] necessary under the third section as under the first — that is, service on the defendant personally. This form of expression indicates something more restricted than would be meant by mere service on the defendant. The latter would include service upon any person who, by act of the party or by intendment of law, was constituted the agent of the party.to receive the service. Dock v. Elizabethtown Steam Manufacturing Co., 5 Vroom 312. But this statute calls for service on the defendant personally, which excludes service on mere agents. Whether such a service can- be made upon a corporation need not now be decided. If it be possible, it must be by service upon the stockholders or the directors or trustees, when convened as a body, for only such a body can, in any fair sense, be said to constitute the corporate .personality. Other persons are but agents of the corporation. Our conclusion is, that service on the secretary of a corporate defendant is not service on the defendant personally, which the statute requires, in order to entitle the plaintiff to judgment after ten days, for want of an affidavit of merits. The present judgment must therefore be set aside, with costs to the defendant.