superior officer or officers the primary persons to be served only if they can be served in the county or other territorial limits, and permit service on agents when the superiors cannot be found or are absent.37 In the federal courts such a statute is followed so far as to treat the federal district as a county, requiring service to be made therein upon officers, if possible, before recourse to service on agents.38 A statute providing that a lesser officer may be served as representative is not to be taken as repealing a general statute authorizing service on the president.39 When the statute makes it a condition for serving any officer that he shall be "in charge of" its office, or its principal office, not only must he be in charge, but the office must be of that grade which is specified.40 In Georgia it is held that "personal" service can only be made on the president.41 A statute providing for service on the president of the "leasing" company of a notice by mail, where the agent of the lessee is served to bring the lessor into court, means that the lessor's president is to be notified.42

In accordance with the rule that a de facto or acting officer is competent, the acting president, or acting secretary,4 ,45 or other acting officer is competent. In the absence of the president the chief or head officer is the vice president,46 secretary,47 or treasur

37 See § 2996, infra.

38 Miller's Adm'r v. Norfolk & W. R. Co., 41 Fed. 431; Lung Chung v. Northern Pac. Ry. Co., 19 Fed. 254.

39 The Ohio statute (Gen. Code, § 11290) authorizing service on the managing agent of a foreign corporation does not exclude service on the president according to the general statute (§ 11288) applicable alike to domestic and foreign corporations. Lively v. Picton, 218 Fed. 401.

40 Taussig v. St. Louis & K. R. Co., 186 Mo. 269, 85 S. W. 378; Thomasson v. Mercantile Town Mut. Ins. Co.

(Mo. App.), 81 S. W. 911. And see generally §§ 2996, 3007, infra.

41 Garnishment which must be served personally can only be served on the president or corresponding offibeing unlike summons which may be served on any agent. Clark v. Chapman, 45 Ga. 486.

cer,

Temporary absence of the president

does not warrant service of garnishment on lesser officers. Steiner, Smith Bros. & Knecht v. Central R. R., 60 Ga. 552.

42 Code, § 3369a. Atlanta & C. AirLine Ry. Co. v. Harrison, 76 Ga. 757. 43 See § 2991, supra.

44 Chamberlain v. Mammoth Min. Co., 20 Mo. 96.

45 McCall v. Byram Mfg. Co., 6 Conn. 428; Perry District Fair Society v. Zenor, 95 Iowa 515, 64 N. W. 598.

46 Pond v. National Mortgage & Debenture Co., 6 Kan. App. 718, 50 Pac. 973; Youree v. Home Town Mut. Ins. Co., 180 Mo. 153, 79 S. W. 175.

Vice president of foreign corporation who negotiated business for it in Maryland may be served under Maryland laws. Noel Const. Co. of Baltimore City v. Geo. W. Smith & Co., 193 Fed. 492.

47 That secretary may be chief officer where president is plaintiff and

[§ 2993 er.48 Clearly the vice president is one of the chief officers.49 The name which an officer is called is not decisive; it is the nature and duties of the office which control.50 If the name does not of itself come under the statute the return or the record should show such facts.51 A director cannot be considered to be the head officer 52 or the clerk or secretary.5 A manager, however supreme, is not a head officer if his authority is derived through a contract, e. g., a mortgage under which possession has been taken,54 and so a receiver cannot be a head officer as such,55 though a contrary decision exists, which is believed to be either silent on an essential fact or else unsound in law,56

"Officers" will include any who are the organic executives of the corporation, as distinguished from its administrative employees, whether the offices be created by the charter or by the corporate authority pursuant to its corporate powers; 57 hence the attorney of the corporation is not one of its officers,58 unless perhaps where the charter of the governing power of the corporation has made him such. One who is denominated an 'assistant" officer may be himself an officer, and as such may be competent,59 but otherwise will not be unless he is in fact one of the agents or alternates pointed out for service. The secretary or clerk of the corporation means the principal clerk, and not subordinates such as bookkeepers.61

Trust Co. of New York v. St. Louis, A. & T. Ry. Co., 40 Fed. 426). In the absence of a statute authorizing such service or a federal receivership, it is doubtful if this would be followed as a precedent in other jurisdictions even so far as to hold the receivers well served. So far as the corporation is concerned it is tantamount to a holding that it may be served on the president or other head" by delivering a copy to the "local agent" of the "other head."

In Ganebin v. Phelan, 5 Colo. 83, it was held good service on foreign receivers of a foreign railroad corporation to serve the local agent, such being the mode of serving such a corporation and the receivers being regarded as having "displaced" its ordinary officers. This was based on a statute. As to the receivers the same result was reached in Farris v. Receivers of Richmond & D. R. Co., 115 N. C. 600, 20 S. E. 167 (in which the corporation seems to have been no party). The court says: "It is not an action against [the receivers] individually. It is in fact, an action against the corporation.' Hence it is reasoned that under Code, § 217 service may be had on a local agent. The North Carolina court cites substantiating this decision, Eddy v. Lafayette, 49 Fed. 807, and Central Trust Co. of New York v. St. Louis,

as

A. & T. Ry. Co., 40 Fed. 426, but both cases were based on act of congress subjecting federal receivers to suit without leave and to the duty of operating and managing railroads according to state laws. If the fact be that the receivers, defendant in the North Carolina cases, were federal receivers, then the decisions harmonize with the federal cases cited as authority so far as service on the receivers is concerned, but no sanction is lent to the reasoning by which the decision is reached or to the decision that the corporation was bound.

57 As to who are in general sense "officers" of the corporation, see § 1743 et seq.

58 Washington & R. R. Co. of Montgomery County v. Johnson, 127 Md. 218, 96 Atl. 445; Northern Cent. R. Co. v. Rider, 45 Md. 24.

59 Assistant secretary, who is an officer by virtue of the by-laws may be served. Colorado Debenture Corporation v. Lombard Inv. Co., 66 Kan. 251, 97 Am. St. Rep. 373, 71 Pac. 584. "Assistant secretary" may be served in absence of secretary who is among the officers named by statute. Leavenworth, T. & S. W. Ry. Co. v. Stone, 60 Kan. 57, 55 Pac. 346.

60 See § 2999, infra, and §§ 2994, 2996, infra.

61 Chambers Bros. & Co. v. King

§ 2994. Managing agent, superintendent, etc., other than executive officers. Next to the statutes which provide that the president and other officers may be served, perhaps the largest class of statutes is that which declares that service may be had on a "managing agent" or the "agent in charge of" an office or place of business of the corporation. These designations are far from synonymous, and therefore are treated separately herein, though obviously a managing agent may also be an agent in charge of the office under his management.62 The object of these statutes was to alleviate the difficulty. of serving officers and to facilitate the acquisition of jurisdiction over the corporation, and a statute allowing service on such officer in the first instance without endeavor to serve higher officers is not to be regarded as having been repealed by one which also allows service on the managing agent if such an endeavor is unavailing.64 If, however, the statute prefers another for service, such as an officer,65 or the statutory registered agent,66 the managing agent can be served only when such preferred service is not feasible; and he can only be served in such places as are allowed by the statute.67 The return must show all such essential conditions.68 The term "managing agent" might well be regarded as self-defining, and few of

Wrought Iron Bridge Manufactory,

16 Kan. 270.

62 As to "agents in charge," see § 2996, infra.

63 The addition in 1876 of "managing agent' to the enumeration of officers capable of service, was designed to facilitate the commencement of action in the county where the cause arose by enabling service to be made there. Holgate v. Oregon Pac. R. Co., 16 Ore. 123, 17 Pac. 859.

64 Comp. St. 1887, § 75, providing for service on named officers, or if they could not be found, on others (including a managing agent) did not repeal section 72, enacted earlier in the same session, which permitted service on certain officers (including a managing agent) in the first instance. Congdon v. Butte Consol. Ry. Co., 17 Mont. 481, 43 Pac. 629.

65 Service on general manager is not good if vice president was present at office to receive service (Act No. 261

of 1908, p. 380). Welch V. New Orleans Great Northern R. Co., 128 La. 738, 55 So. 338.

See §§ 2991, 2993, supra.

66 If foreign corporation has designated no agent, its managing agent can be served. Thomas v. Placerville Gold Quartz Min. Co., 65 Cal. 600, 4 Pac. 641.

See also § 2998, infra.

67 A federal corporation if to be regarded as domestic, cannot be served as such through its general manager where the facts do not meet the requirement of the statute that the general office be within the state and that the general manager reside and be within the county of suit. Kernan v. Northern Pac. R. Co., 103 Wis. 356, 79 N. W. 403.

As to place for service, see also § 3007, infra.

68 Showing necessary in return to warrant serving managing agent, see § 3012, infra.

the many decisions applying it have attempted any formal definition,69 but it has been defined in the state of its most frequent consideration as "one who has general power involving the exercise of judgment and discretion." 70 It is not necessary that he should have sole control of affairs.71

The nature of the reposed authority is the real test, and the term has been held to include a general superintendent,72 local or division superintendents, especially when at a point away from the main office,73 foremen under like circumstances, 74 local railroad and insur