[§ 2986 where by alleging the name and residence of the agent the citation. may be served on him, it is not obligatory to so direct it, for under the law it may also command generally that the defendant be summoned without specifying such agent.37 A further rule is that it must run against the very corporation which is the intended defendant, and not against some other corporation of similar name or one related in some way to the one intended.38 A misnomer is not fatal to the judgment if it does not mislead and if it be proved that the right corporation was served though by the wrong name; otherwise when the wrong corporation, that is one not intended, was served.39 Hence a service on the agent of the wrong corporation cannot be regarded as a service on the right corporation by a wrong name.40 Such a misnomer, therefore, as consists in use of "railway" or "railroad" each for the other, or "corporation" for "company," 42 or the use

41

Frederick, 57 Neb. 538, 77 N. W.

1106.

The name without description as a corporation is sufficient. Fisher v. Traders' Mut. Life Ins. Co., 136 N. C. 217, 48 S. E. 667.

It is sufficient that the full corporate name be set out in the summons, although no recital that it is a corporation be made. A failure to describe the defendant as a corporation can be cured by amendment. Snyder v. Philadelphia Co., 54 W. Va. 149, 63 L. R. A. 896, 102 Am. St. Rep. 941, 1 Ann. Cas. 225, 46 S. E. 366.

37 The practice in Texas is to allege in the petition the name of the agent of the corporation, with his residence, on whom it is desired that service be had.

The name of the officer or agent to be served need not be stated in the petition (complaint) and citation under the Texas statutes. To do so is a mere practice of convenience and merely avoids the necessity of taking proof of agency on a default. Illinois Steel Co. v. San Antonio & G. S. Ry. Co., 67 Fed. 561.

Citation to summon defendant corporation is valid though the petition alleges the name of the president and

prays that "the defendant be cited as the law directs." National Equitable Soc. of Belton v. Tennison, Tex. Civ. App. —, 174 S. W. 978.

Where the petition alleged who was president of defendant and prayed process against defendant, a direction in the citation to summon "B., president of [name of defendant]" is good. Galveston & R. R. Ry. Co. v. Shepherd, 21 Tex. 274.

38 Must run against the very corporation to be served, though its agent is also served as agent of another defendant. Pennsylvania Co. v. Sloan, 1 Ill. App. 364.

39 See § 743, supra.

Black, Judgments, § 213; Freeman, Judgments (4th Ed.), § 154, p. 279.

40 Little Rock Trust Co. v. Southern Missouri & A. R. Co., 195 Mo. 669, 93 S. W. 944.

41 Alabama & V. R. Co. v. Bolding, 69 Miss. 255, 30 Am. St. Rep. 541, 13 So. 844; Central & M. R. Co. v. Morris, 68 Tex. 49, 3 S. W. 457; Galveston, H. & S. A. R. Co. v. Donahoe, 56 Tex. 162.

42 Varney & Evans v. Hutchinson Lumber & Manufacturing Co., 64 W. Va. 417, 63 S. E. 203.

of the former name by mistake, 43 or even an abbreviation to initials of the corporation, have been held not material; otherwise where the word "railroad" was incorrectly inserted in the name.45 Unless seasonably objected to in a proper manner by plea in abatement for misnomer or by motion, such a misdescription will be waived; 46 for the writ is not made void thereby 47 and it may be cured by the pleadings supplying the correct name, or by the court's judicial knowledge of it,48 or by amendment.49

§ 2987. Attachment, arrest, sequestration or distraint. Process of attachment and garnishment against the corporation either as the principal debtor or as the garnishee are made the subject of an ensuing chapter, and the reader is referred thereto.50 By federal statute attachment may not be made against property of a national bank prior to judgment in any state court. This rule obtains whether the corporation be solvent or insolvent.51 Arrest of the person of the defendant on original process is, like the common-law capias, a process Plainfield Academic School, 6 Conn. 532.

[§ 2988 inherently impossible of application to a corporate defendant, which has no body to be taken. Whether it may have such process when it is the plaintiff depends on the terms of the statute covering such process and on its capacity to maintain the action or suffer the injury for redress of which the defendant may be arrested.52 Sequestration at the common law was the ultimate original process resorted to after distress had failed to coerce an appearance. 53 It is not to be confused with the statutory sequestration which in New York is available as a remedy of creditors. Distraint or distringas was the ancient process as already explained to coerce an appearance.54 A jurisdiction in rem, or quasi in rem, may be gained by attachment,55 but it must strictly accord with the statute.56

§ 2988. Service of process-In general. The service must be according to the statute applicable to the particular class of corporations to which defendant belongs 57 and to the court (such as a justice of the peace) which entertains the action,58 and to the kind of writ or process.59 It must be on the very corporation which is the defendant 60 through an officer or agent competent to represent it for that purpose.61

52 As to the right of any plaintiff to have arrest of defendant, see local statutes and decisions.

53 See $2985, supra.

54 See $2985, supra.

55 See § 2977, supra.

56 See § 2989, infra, and chapter on Attachment and Garnishment, infra.

57 Foreign corporation coming in consents to be served like domestic corporations. Chicago & A. R. Co. v. Walker, 9 Lea (Tenn.) 475.

58 Inferior courts must serve according to the statute controlling them, and service which would be good in a superior court will not suffice where the statute does not apply to the inferior courts. Delaware, L. & W. R. Co. v. Ditton, 36 N. J. L. 361.

The special provision as to service in actions before a justice (Code Civ. Proc. § 912) prevails over the general provisions (section 73); hence a return conforming to the latter is bad if it omits anything required by the former. Campbell Printing Press &

Manufacturing Co. v. Marder, Luse

& Co., 50 Neb. 283, 61 Am. St. Rep. 573, 69 N. W. 774.

59 As to the mode of service of attachment and garnishment, see generally chapter on Attachment and Garnishment, infra.

Garnishment is within a statute regulating the mode of serving "process." Boyd v. Chesapeake & O. Canal Co., 17 Md. 195, 79 Am. Dec. 646.

60 Suit was brought against a railroad company to enforce a railway lien. The summons was served on another railroad company, which had no connection with the construction of the road in question or the question of a lien upon it. The court held that the question raised was not one of misnomer but of service upon the proper party. Little Rock Trust Co. v. Southern Missouri & A. R. Co., 195 Mo. 669, 93 S. W. 944.

61 See § 2991 et seq., infra, as to the proper officers and agents.

The privilege of one attending as a nonresident witness and available to him as a defendant is not available to the domestic corporation codefendant of which he is an officer; hence service on him as its officer is good, while that on him for himself is bad.62 However, if there was a fraud in inveigling a natural person to a place where he might be served, it would be voidable; and the same has been held of a foreign corporation whose officer was so served.63 Doubtless the same rule would apply to a domestic corporation, if, say, its officer were inveigled into a county fraudulently and there served. One service will suffice for a corporation which is sued in two different rights both of which pertain to it.64 The service must be on persons representative of the corporation and competent for this purpose 65 or some constructive service in lieu thereof 66 at the proper place 67 and accomplished in the proper mode and time 68 by a qualified officer or server,69 who must thereupon make due return or proof of his doings with the process; 70 or instead of service there must be waiver or acknowledgment of service or voluntary appearance.71

§ 2989. Necessity of strict procedure. The statutory method,72 including the persons to be served,73 is essential to jurisdiction and

rate the sole ground of decision was the fraud. It might therefore be regarded as a precedent applicable alike to domestic and foreign corporations.

As to the necessity that the officer of a corporation shall be representatively present in the state on the regular business of the corporation to be eligible for service, see chapter on Foreign Corporations, infra.

64 A railroad corporation sued as a principal defendant and also as lessee of another may be served by one service in both capacities. Snipes v. Atlanta & W. P. R. Co., 7 Ga. App. 700, 67 S. E. 1046.

65 See § 2991 et seq., infra.

66 See § 3005, infra.

67 See § 3007, infra.

68 See § 3009, infra.

69 See § 3011, infra.

70 See § 3012, infra.

71 See $$ 3017, 3018, infra.

72 Holgate v. Oregon Pac. R. Co., 16 Ore. 123, 17 Pac. 859; Latham Co. v. J. M. Radford Grocery Co., 54 Tex. Civ. App. 510, 117 S. W. 909; Hamburg-Bremen Fire Ins. Co. v. Moses, 2 Posey Unrep. Cas. (Tex.) 438. See also generally the cases throughout this subchapter. Many cases assume that strict conformity to statute is required and without so stating pass on to consider the sufficiency of the service to meet this requirement.

This "rule is especially exacting in reference to corporations." Kernan v. Northern Pac. R. Co., 103 Wis. 356, 79 N. W. 403.

73 The statute must be strictly followed as to the persons to be served. Adkins v. Globe Fire Ins. Co., 45 W. Va. 384, 32 S. E. 194.

[§ 2990 strictness is especially requisite in inferior courts 74 and in actions begun by attachment of property,75 or by substituted or constructive service.76 Anything short of this will be of no avail though in fact the corporation had notice of the proceeding." It is necessary that the return shall show a substantial conformity to every requirement of the statute.78

§ 2990. In federal courts. By virtue of the Conformity Act the service "as near as may be" follows the state practice in common law causes, an exception being that the service is to be made by the marshal. In equity and admiralty the Conformity Act does not apply but the service is made on the same persons as in law cases.79