the time of service is not sufficient to bring a corporation into court, although the vacancy has not been filled.81 The representative relation must have ceased, and mere absence, inactivity, and the devolution of duties on a substitute do not amount to that.82 Expiration of his elective or appointive term is not equivalent to a cessation of representative capacity, if by the general law or the by-laws his office is regarded as continuing until the election or appointment and induction of his successor.83 Neither does a resignation ipso facto determine his representation; for there must be an acceptance or its equivalent before there is a vacancy,84 and it has even been held that

in addition there must be a successor elected before competency for service is ended,85 and that with all this it may be unavailing against third persons to their prejudice.86 It is the fact of a cessation of representative capacity which makes the person incompetent for service thereafter, and not any knowledge or notice thereof brought home to the plaintiff or plaintiff's belief on the subject.87 However, it may be presumed that the incumbency has continued, and the belief of the officer or his conclusion will not prevail against such presumption.88

In the case of an agent the rule is similar, and if the agency has ceased, service on the agent thereafter is not good.89 This is the case where one formerly an agent has become an independent contractor with the corporation.90 It is not necessary that there shall have been any notice of the cessation of the agency to make it effective for this purpose.91 In the agent's case also the existence, continuance

The fact that by statute directors may fill a vacancy in the board does not imply that a resignation of a director cannot be effective until his successor is chosen. Fearing v. Glenn, 73 Fed. 116.

Colorado
Lombard

85 It is within the power of the corporation to elect a successor and thereby terminate all relationship to it of the officer who has so resigned, and if it fails so to do it will not be permitted, as against creditors, to take advantage of its neglect. Debenture Corporation v. Inv. Co., 66 Kan. 251, 97 Am. St. Rep. 373, 71 Pac. 584; Yorkville Bank v. Henry Zeltner Brewing Co., 80 N. Y. App. Div. 578, 80 N. Y. Supp. 839; Carnaghan v. Exporters' & Producers' Oil Co., 57 Hun (N. Y.) 588, 11 N. Y. Supp. 172; Noble v. Euler, 20 N. Y. App. Div. 548, 47 N. Y. Supp. 302; Sturgis v. Crescent Jute Mfg. Co., 57 Hun (N. Y.) 587, 10 N. Y. Supp. 470; Timolat v. S. J. Held Co., 17 N. Y. Misc. 556, 40 N. Y. Supp. 692; Wilson v. Brentwood Hotel Co., 16 N. Y. Misc. 48, 37 N. Y. Supp. 655.

86 As where all resigned. Evarts v. Killingworth Mfg. Co., 20 Conn.

447.

87 The fact that plaintiff's attorney disbelieved in the bona fides and reality of the resignation does not qualify the officer for service. Buchanan v. Prospect Park Hotel Co., 14 N. Y. Misc. 435, 35 N. Y. Supp. 712. But see Colorado Debenture Corporation v. Lombard Inv. Co., 66 Kan. 251, 97 Am. St. Rep. 373, 71 Pac. 584.

88 An officer is presumed to continue as such until termination of his incumbency is shown. His bare conclusion that it had is not proof. Quitman Oil Co. v. Peacock, 14 Ga. App. 550, 81 S. E. 908.

89 Expiration of the contract term of agency which still continued in fact is immaterial. Gross v. Nichols, 72 Iowa 239, 33 N. W. 653.

90 Combs v. Hamlin Wizard Oil Co., 58 Ill. App. 123.

91 Equitable Produce & Stock Exchange v. Keyes, 67 Ill. App. 460.

Changing an employee to an independent contractor renders him incompetent without regard to notice of such change, there being no agency thereafter held out. Combs v. Hamlin Wizard Oil Co., 58 Ill. App. 123.

or termination of the agency is a question of fact 92 not determinable by the agent's declarations.93

In the case of officers or agents holding a dual relation to the corporation in either of which relations he was competent for service, termination of one relation does not affect his competency to be served in the remaining capacity.94

A designated resident agent's capacity to receive service is not lost by failure to renew the appointment at the end of his year.95 It has been held of a statute requiring the filing of a list of the officers, that noncompliance did not authorize service on former officers who had ceased to be such.96 A statutory agent's power to receive service cannot be revoked, it has been held in the case of a foreign. corporation, to the prejudice of residents holding rights prior in time,97 or while there are outstanding policies or contracts made or existing under it.98 Subject to this it is revoked by cessation or withdrawal from business in the state,99 or by the act of the official him

92 Service on an agent who had been competent for service and had often previously been served is good. Hill v. Morgan, 9 Idaho 718, 76 Pac. 323.

93 Mere declarations by the former agent that he was yet agent are not binding. Boynton v. Keeseville Elec. Light & Power Co., 5 N. Y. Misc. 118, 25 N. Y. Supp. 741.

94 If one served as vice president and managing agent retains the latter office, it suffices. Coast Land Co. v. Oregon Pacific Colonization Co., 44 Ore. 483, 75 Pac. 884.

95 Hamilton v. Wilder, 31 Vt. 695. 96 Failure to file a list of officers with the county auditor (Rem. & Bal. Code, §§ 3691, 3692), does not justify service on one who has ceased to be an officer. Lushington v. Seattle Auto & Driving Club, 60 Wash. 546, 111 Pac. 785.

97 Revocation of insurance commissioner's designation held ineffectual as to a citizen who had become assignee of a foreign claim before revocation made. Hunter v. Mutual Reserve Life Ins. Co., 118 N. Y. App. Div. 94, 103 N. Y. Supp. 70. So as to a

resident who took a policy before revocation. Woodward v. Mutual Reserve Life Ins. Co., 178 N. Y. 485, 102 Am. St. Rep. 519, 71 N. E. 10. But the revocation is effective against a resident who took a foreign claim afterwards. Hunter v. Mutual Reserve Life Ins. Co., 184 N. Y. 136, 30 L. R. A. (N. S.) 677, 6 Ann. Cas. 291, 76 N. E. 1072. (The foregoing decisions were made on consideration of the faith and credit to be given a foreign judgment made on such service.)

See generally chapter on Foreign Corporations, infra.

98 A consent to be served through the insurance commissioner cannot be revoked as long as there are outstanding policies in the state. Com. v. Provident Sav. Life Assur. Society, 155 Ky. 197, 159 S. W. 698; opinion modified in another respect on rehearing 155 Ky, 771, 160 S. W. 476.

Withdrawal does not prevent serv ice on the auditor on a cause of action arisen within the state from business done therein. S. M. Smith Ins. Agency v. Hamilton Fire Ins. Co., 69 W. Va. 129. 71 S. E. 194.

99 A statute for service on foreign

self in revoking the license of the corporation to which his authority is an incident. A domiciliary dissolution of the corporation also necessarily revokes such a designation to most intents and purposes, though possibly not as to similar residents and rights. Until a case is presented of an attempted revocation by a domestic corporation of the designation of such an agent, and service on him thereafter, the question should be treated as one pertaining to foreign corporations, or of the constitutional faith and credit guaranteed to foreign judgments, which was the real point in some of the cases just cited.

§ 3003. — Dissolution, suspension or dormancy of corporation. In cases of dissolution or suspension of the corporation further questions obtrude. First, if before the action is commenced, what was its effect, to extinguish the corporation, or to leave it in existence for winding up purposes, or to make a receiver or liquidator the person to sue or defend in its stead? Second, if pendente lite but so that additional service may be required, did the action wholly abate or was it continued by force of statute?5 Third, assuming its continuance in some form, on whom does the representation of the corporation devolve for that purpose? The answers to these questions, found at the places referred to, will lead back to the question whether the required representative capacity has terminated or been extinguished, and that is met by the ordinary rules stated in this section. Dissolution or suspension goes not to cessation of the representative authority to be served as it does to cessation of the principal's existence or its functions for the time being. An apparent contrariety

(insurance) companies through a publie officer if no agent has been designated, ceases to authorize such service when the company ceases to do business in the state. People v Commercial Alliance Life Ins. Co., 7 N. Y. App. Div. 297, 40 N. Y. Supp. 269.

See chapter on Foreign Corporations, infra.

1 The revocation by the insurance, commissioner of leave to do business in the state extinguishes a consent that he should represent the corporation for service therein. Swann v. Mutual Reserve Fund Life Ass'n, 100 Fed. 922.

2 After dissolution in the domicile the superintendent of insurance cannot

receive service for a foreign company merely because he has custody of its assets. Martyne v. American Union Fire Ins. Co. of Philadelphia, 168 N. Y. App. Div. 380, 153 N. Y. Supp. 433, order affirmed 216 N. Y. 183, 110 N. E. 502.

3 See chapter on Foreign Corporations, infra, as to the making and revocation of such designations and their effect.

4 See generally chapters on Forfeiture, Dissolution and Winding Up; Receivers; Insolvency; Bankruptcy, infra.

5 See §§ 2954, 2955, supra.

6 See references in two preceding footnotes.

of opinion exists as to the competency of a station agent or other operating agent to receive service on his corporation where it has gone into the hands of receivers who are operating the property. The majority hold such an agent incompetent basing the conclusion expressly or impliedly, or without any other perceptible reason, on the fact that the agency for the corporation has ceased and another agency for the receivers has taken its place. The same reasoning leads to a like result where an operating company or a corporate successor has become a new principal.8 This rule is not altered by the fact that the successor takes under a proviso that all rights of creditors shall be preserved. Some authorities, however, have reached the conclusion that the agency for the corporation continues notwithstanding such receivership or other change, and if this is true in fact there is no reason in law against such dual agency, outside of possibly some inhibiting statute.10 When reduced to reasons the

7 Receivers' agent, though formerly agent of the railroad corporation is not competent. Webster v. International & G. N. Ry. Co., Tex. Civ. App., 184 S. W. 295.

See the cases cited § 2991, supra, to the proposition that the agent of a receiver is not the representative of the corporation and therefore cannot be served.

8 Extinguishment of agency by sale of defendant's property and franchise to another into whose sole service the agent enters disqualifies him. Pennington & Evans v. Douglas, A. & G. R. Co., 6 Ga. App. 854, 65 S. E. 1084.

Lessor cannot be served by serving agent, who has ceased to be such agent for lessor and has become lessee's agent. Perry v. Brunswick & W. R. Co., 119 Ga. 819, 47 S. E. 172; Chicago, B. & Q. R. Co. v. Weber, 219 Ill. 372, 4 L. R. A. (N. S.) 272, 76 N. E. 489, rev'g 121 Ill. App. 455 (evidence to show which was real principal considered).

In suit against a corporation selling its entire property, service on a party who had been ticket agent of the sell. ing corporation and retained the same position with the purchasing corporation is not sufficient. Thomson v.

McMorran Milling Co., 132 Mich. 591, 94 N. W. 188.

9 A former corporation cannot be served through one who has ceased to be its agent and has become agent for a successor. Thomson v. McMorran Milling Co., 132 Mich. 591, 94 N. W. 188, 10 Det. L. N. 48.

10 A station agent does not lose his relationship to the railroad company and become incompetent for service by appointment of receivers and notice from them to him of their control. Ennest v. Pere Marquette R. Co., 176 Mich. 398, 47 L. R. A. (N. S.) 179, Ann. Cas. 1915 B 594, 142 N. W. 567.

Receivership does not of itself terminate a division superintendent's managing agency for a railroad company, though he continues serving the receivers. Faltiska v. New York, L. E. & W. R. Co., 12 N. Y. Misc. 478, 33 N. Y. Supp. 679, but see dissenting opinion.

The mere fact that the railroad has gone into receivers' hands since the agent's appointment does not terminate the agent's authority. Simpson v. East Tennessee, V. & G. Ry. Co., 89 Tenn. (5 Pickle) 304, 15 S. W. 735.