spect to the place of the cause of action 15 must be such as the statute prescribes, and if the absence or inability to serve superiors, 16 or the residence of any superior is a condition, that, too, must be such as is prescribed, else the agent cannot be served.17 Every other imposed condition must be met,18 and the return must show the facts.19 The as can be served for a domestic or foreign corporation (Code, §§ 2831, 2832). His is not an "office or agency" within the county. Chicago & A. R. Co. v. Walker, 77 Tenn. (9 Lea) 475. 15 Service on a common carrier's chief agent in M county is bad when the action is brought in J county and there has been a designated agent appointed. The chief officer in the state (president) could have been served or the designated agent (Civ. Code Prac. § 51, construed). Cincinnati, P. B. S. & P. Packet Co. v. Malone Co., 29 Ky. L. Rep. 44, 92 S. W. 306. 16 The absence of primary officers from the state is not required to appear, but only their absence from the serving officer's county. Florida Cent. & P. R. Co. v. Luffman, 45 Fla. 282, 33 So. 710. Only when the prescribed superior officers cannot be served (statutes construed), may the agent be served. St. Louis & S. F. R. Co. v. Reed, Okla., 158 Pac. 399. Service at the domiciliary office by leaving a copy with a person of required age working there is good if the secretary designated for service was absent and inquiry disclosed that there were no other officers present (Act No. 261 of 1908, p. 381). Abney v. Louisiana & N. W. R. Co., 127 La. 437, 53 So. 678. Service of summons was upon the secretary at the corporation's place of business in the county. The secretary was in charge of the office and the president could not be found in the county. The statute provided that service should be made on the president, or if absent, by leaving a copy at the corporate office with the person in charge. It was held that the court had jurisdiction. Taussig v. St. Louis & K. R. Co., 186 Mo. 269, 85 S. W. 378. Service on a freight agent out of justice's court is good where the only higher agent was an assistant superintendent who was not a "managing agent" (Code Civ. Proc. § 2880). Duval v. Boston & M. R. Co., 58 N. Y. Mise. 504, 111 N. Y. Supp. 629. Endeavor and diligence required to serve officers before others can be served, see § 3009, infra. Practice in federal courts of treating "county" as equivalent to district with respect to requirement that superior be served in county if pos sible before resort to agents, see $ 2993, supra, § 3000, infra. 17 An express company's local agent may be served if the president does not have his personal residence in the state (Code, § 3412). Southern Exp. Co. v. Skipper, 85 Ga. 565, 11 S. E. 871. 18 Service on an express company's agent is not good under the statute unless the president or chief officer resides in the state and a statutory notice of his name and residence is also posted in each office. Conner v. Southern Exp. Co., 37 Ga. 397. Station agent may be served, though principal office was not in the county (Code, § 1529). Alabama & V. Ry. Co. v. Bolding, 69 Miss. 255, 30 Am. St. Rep. 541, 13 So. 844. 19 Necessary showing in return, see § 3012, infra. court must be such 20 and the action or cause of action must be such that the statute allows service on a local or other particular agent,21 and his connection with the cause of action or its origin may be essential.22 A cause growing out of the business of the agency, which some statutes make a condition, cannot include a tortious killing of an animal on the tracks of a railroad.23 The federal statutes provide specially that an agent conducting the business of an infringer at a regular place of business in a state where it is not an inhabitant may be served in infringement cases. To this extent the state rule as to the persons competent for service is not followed.24 The highest agent in the county or at a place is the "chief agent" there, and several with equal powers may all be chief agents.25 at any depot house," etc. St. Louis, I. M. & S. R. Co. v. Barnes, 35 Ark. 95. 22 A division superintendent having charge of a line where the tort occurred beyond the state is an agent connected with the cause of action under the Georgia statute. Hills v. Richmond & D. R. Co., 37 Fed. 660. But see note following. 23 Toledo, W. & W. Ry. Co. v. Owen, 43 Ind. 405. But see Hills v. Richmond & D. R. Co., 37 Fed. 660, cited in note preceding. 24 In a patent infringement case "the agent or agents engaged in conducting such business in the district in which suit is brought" must be served (Judicial Code, $48), and hence a designated agent appointed under the state law is incompetent unless it appears that the corporation was conducting business in the state as well as licensed by the state to do so. United States Gramophone Co. v. Columbia Phonograph Co., 106 Fed. 220. Where the corporation is not an in habitant the state mode of serving process does not apply but the mode is fixed by the later clause of the federal statute, to-wit on an agent there conducting such business” of infringement. Weller V. Pennsylvania R. Co., 113 Fed. 502. In such cases the regular officers may be served if available and amenable, the word "may" indicating that the statute is permissive in providing for service on an agent in the given contingency. National Elec. Signaling Co. V. Telefunken Wireless Tel. Co., 194 Fed. 893. 25 The chief soliciting agents of an insurance company may be served. German Ins. Co. of Freeport v. First Nat. Bank, 58 Kan. 86, 62 Am. St. Rep. 601, 48 Pac. 592. Local ticket agent, who is the highest officer or agent in the county where suit is brought, may be served (Civ. Code, § 51, subsec. 3). Chesapeake & O. R. Co. v. Cowherd, 96 Ky. 113, 27 S. W. 990. A wharf master of a foreign corporation being its highest agent in the state may be served where he resides and is its agent, in action for a tort committed on a boat on the Ohio river adjacent to Indiana (R. S. 1881, § 316, also § 312). Memphis & C. Packet Co. v. Pikey, 142 Ind. 304, 40 N. E. 527. The term "local agent" excludes a casual or general agent 27 and also a mere work foreman.28 A "depot" or "ticket" agent has been held not to include a "commercial agent" 29 or a conductor stopping at a loading point where there is no agent,30 and it has been doubted whether a superintendent can be such.31 A telegraph operator 32 or a freight solicitor 33 may be a "person in charge." § 2997. Cashiers, clerks, bookkeepers, etc. These are made competent for service by some statutes. The cashier is the financial agent of the corporation, and not every teller or person who handles money is a cashier.34 In some corporations an officer exists called Service in D county on the agent of a domestic insurance company having its home office in M county, and no higher officer in D county is good although the action did not arise from business done by such agent. Globe Acc. Ins. Co. v. Reid, 19 Ind. App. 203, 49 N. E. 291, 47 N. E. 947, adhering to Memphis & C. Packet Co. v. Pikey, 142 Ind. 304, 40 N. E. 527, and explaining statutory changes. Captain of a towboat was chief officer, or agent, the corporation being foreign with no other officers in state, and the action being for negligence in towing. L. Dodge Lumber Co. v. Macquithy, 14 Ky. L. Rep. (abstract) 142. Any of several agents with like powers may be a chief agent (Civ. Code, 51, subsec. 3). Louisville & N. R. Co. v. Com., 5 Ky. L. Rep. 317, 330. 27 A local agent' (R. S. 1895, art. 1222) means one acting for a particular locality and does not include one casually in a locality or a general iranager, which is distinctively referred to in the next section (section 1223). Latham Co., v. J. M. Radford Grocery Co., 54 Tex. Civ. App. 510, 117 S. W. 909. 28 A foreman working under a local superintendent is not a "managing or local agent." Simmons v. Defiance Box Co., 148 N. C. 344, 62 S. E. 435. 29 Detroit v. Wabash, St. L. & P. Ry. Co., 63 Mich. 712, 30 N. W. 321. 30 A conductor of a train at the end of a stub which was used only to reach a cattle chute from a station several miles distant, no freights being charged for picking up cars thereon or any passengers carried is not an agent in charge of a "depot or station." Chicago, R. I. & P. Ry. Co. v. Groves, 7 Okla. 315, 54 Pac. 484. 31 Query, whether a superintendent of the lessee is equivalent to a "depot agent" for service on a lessor of a railroad. Atlanta & C. Air-Line Ry. Co. v. Harrison, 76 Ga. 757. 32 An operator in charge of a railroad telegraph station is a person in charge of a place of business. State v. Myers, 126 Mo. App. 544, 104 S. W. 1146. 33 Freight solicitor in charge of office. Davis v. Jacksonville Southeastern Line, 126 Mo. 69, 28 S. W. 965. 34 Teller of a bank is not "president or other head of the corporation, secretary, cashier or managing agent." (Garnishment statute held not to enlarge agents who may be served.) Kennedy v. Hibernia Savings & Loan Society, 38 Cal. 151. One who merely receives money in a department is not a cashier. Eisenhofer v. New Yorker Zeitung Pub. & Prtg. Co., 91 N. Y. App. Div. 94, 86 N. Y. Supp. 438. the clerk, being analogous to the secretary,35 but an agent who is not clerical cannot be regarded as either an officer or a clerk.36 A bookkeeper has been held not a managing agent,37 and not the secretary or clerk of the corporation.38 § 2998. Registered agent or designated official to receive service. Especially with respect to foreign corporations,39 nonresident domestic ones 40 and insurance companies, numerous statutes provide for appointment of an agent to receive service and for the recording or filing of a certificate of such appointment, or for the qualification of a state officer for that purpose by operation of law and license. "Process" within such a statute has been held to include garnishment 41 and mandamus.42 By some of these statutes the agent so designated is the exclusive one for service,43 but if not other agents A bookkeeper who also receives money is not a "cashier," and his admission that he was such does not make the service good. Van Damm v. New York Cent. Storage Co., 132 N. Y. Supp. 394. A cashier in an office of discount and deposit is not "cashier" of the bank. Brobst v. Bank of Pennsylvania, 5 Watts & S. (Pa.) 379. An employee in the office of a local agent is not the "cashier or treasurer." Fearing v. Glenn, 73 Fed. 116. 35 See $2993, supra. 36 Track master is neither an "officer" nor a "clerk" engaged in active management of the ordinary business of the corporation. Richardson v. Burlington & M. R. Ry. Co., 8 Iowa 260. 37 Rogers v. New York Cent. Storage Co., 131 N. Y. Supp. 591. Contra, on the evidence, see First Nat. Bank of Blue Hill v. Turner, 30 Neb. 80, 46 N. W. 290. 38 Chambers Bros. & Co. v. King Wrought-Iron Bridge Manufactory, 16 Kan. 270. 39 See chapter on Foreign Corporations, infra. 40 Under the West Virginia statute (Code 1906, § 3805), the auditor is agent for service on a nonresident domestic corporation without any appointment and wholly by virtue of law. Wylie Permanent Camping Co. v. Lynch, 195 Fed. 386, writ of certiorari denied 225 U. S. 707, 56 L. Ed. 1266 (mem. dec.). 41 Garnishment is included in the word "process" in How. St. § 4368 relating to foreign insurance companies and providing for service on the insurance commissioner. German American Ins. Co. v. Chippewa Circuit Judge, 105 Mich. 566, 63 N. W. 531, qualifying Milwaukee Bridge & Iron Works V. Wayne County Circuit Judge, 73 Mich. 155, 41 N. W. 215. 42 Laws 1907, c. 345, § 19, providing for service on foreign insurance companies through the insurance commissioner of any legal process in any action or proceeding" includes process of mandamus. State v. Brotherhood of American Yoemen, 111 Minn. 39, 126 N. W. 404. 43 The statutory mode of serving foreign insurance companies through the designated agent (Laws 1874, p. 74) repeals former acts and is exclusive. A local agent cannot be served. Baile v. Equitable Fire Ins. Co., 68 Mo. 617. If a foreign corporation has designated an agent he must be served. IV Priv. Corp.-68 Where no des may be served if competent under other statutes.44 ignation has been made, other agents may be served according to the statutes.45 The designation must be made while the corporation is competent to do it 46 and takes effect from the time of consent, where a public official is pointed out and corporate consent to service on him is exacted.47 If two state officials are made competent for such service, a service through either is enough.48 A deputy may act for a state officer qualified ex officio.49 State v. King Bridge Co., 28 Ohio Cir. Ct. 147. An insurance solicitor cannot be served for a foreign company which has designated an agent. Liblong v. Kansas Fire Ins. Co., 82 Pa. 413; Conners v. Prudential Ins. Co., 6 Kulp (Pa.) 400, 11 Pa. Co. Ct. 50, 1 Pa. Dist. Ct. 115. 44 The constitution and statutes do not restrict service on a foreign corporation to the designated agent. By Mills Ann. Code, § 38, subd. 9, it may be made on "any agent" found in the county. Venner V. Denver Union Water Co., 40 Colo. 212, 122 Am. St. Rep. 1036, 90 Pac. 623, overruling Venner v. Denver Union Water Co., 15 Colo. App. 495, 63 Pac. 1061, in part. The general code provisions (Code Civ. Proc. § 432) for service on foreign corporations and mentioning a designated agent (subd. 2) co-exists with a law providing for designation of the insurance superintendent by foreign insurance corporations. A foreign insurance company may be served on any of the persons indicated. Silver v. Western Assur. Co. of Toronto, Canada, 3 N. Y. App. Div. 572, 38 N. Y. Supp. 335. The statute providing for a designated agent (1910, 26 Stat. 775) does not repeal the law allowing any agent. Montgomery v. United States Fidelity & Guaranty Co., 90 S. C. 283, 73 S. E. 182, 71 S. E. 1084. 45 Section foreman is a "local superintendent" of repairs and may be served if there has been no designation of an agent and no other person or officer in the county who could be served. St. Louis & S. F. Ry. Co. v. De Ford, 38 Kan. 299, 16 Pac. 442. If there is no registered agent the managing agent can be served. Thomas v. Placerville Gold Quartz Min. Co., 65 Cal. 600, 4 Pac. 641. 46 Designation of the office of its attorney as being the corporate agent after insolvency of the corporation is not sufficient. Nickolson v. Wheeling, L. E. & P. Coal Co., 110 Fed. 105. 47 Under the statute requiring the filing of a consent to service on the state auditor it is the consent and not the statute which qualifies him. Therefore service on him while a company was not doing business and be fore such filing is not binding. Greaves v. Posner, 111 Iowa 651, 82 N. W. 1022. 48 A foreign insurance company doing business in the state may be served through the secretary of the corporation commission (Act of 1901, c. 5) whether or not it has property here; and it is not material that it has not complied with the law whereby it might also have been served through the insurance commissioner. Either or both methods apply. Fisher v. Traders' Mut. Life Ins. Co., 136 N. C. 217, 48 S. E. 667. 49 South Pub. Co. v. Fire Ass'n of Philadelphia, 67 Hun (N. Y.) 41, 21 N. Y. Supp. 675, aff'd 137 N. Y. 610, 33 N. E. 744. |