the right to have process sent out to another county is dependent on allegations of fact in the complaint, it must show them well pleaded.79 §3009. Mode and time of service-In general. The necessity of service in conformity to the statutory mode has been stated in a previous section.80 In a celebrated case the United States Supreme Court uttered a dictum that the state creating them could provide a mode for serving corporations, which in view of the context and subject of the opinion no doubt means that any legislation would needs be agreeable to due process of law and other constitutional limitations.81 There may be more than one mode of service, either of which is good,82 and a statute providing that service "may" be made in a given way is to be regarded as cumulative.88 A general statute for civil practice with a section for service on corporations will repeal an act applicable to corporations alone,84 but an act relating to corporation service generally does not impliedly repeal one relating only to railroad corporations.85 If the name of the defendant imports incorporation, the service should accordingly be made as on a corporation.86 The mode appropriate to the particular kind of corporation must be followed.87 The mode of communicating the notice or support of process so sent out and served. Rochester, R. & St. L. Ry. Co. v. Jewell, 107 Ind. 332, 8 N. E. 215. 79 Process can be sent out of the county only on like averments as would be required in the case of natural persons. Holbrook v. Peoria Bridge Co., 3 Ill. 32. 80 See § 2989, supra. 81 Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565. 82 If service on an agent is made and also the alternative mode of leaving a copy is adopted, either will suffice regardless of the other. El Paso & S. W. Ry. Co. v. Kelly (Tex. Civ. App.), 83 S. W. 855, rev'd 99 Tex. 87, 87 S. W. 660. 83 Held to indicate an additional mode of service to those elsewhere in the statutes pointed out. State v. Hannibal & St. J. R. Co., 51 Mo. 532. 84 Act of March 14, 1877, "to provide for formation of corporations," was repealed as to section 30 fixing method of service by the Act of March 17, 1877, "to provide a system of procedure in civil actions," section 37 providing a mode of service on corporations. Little Bobtail GoldMin. Co. v. Lightbourne, 10 Colo. 429, 15 Pac. 785. 85 Act of February 18, 1855, providing for service out of justice courts on the "president, cashier, secretary, or other principal officer," does not repeal the law permitting service on conductors of railroads. Fowler v. Detroit & M. Ry. Co., 7 Mich. 79. 86 Under the statute, garnishee service is the same as in original attachment. Hence service according thereto was held good. United States Exp. Co. v. Bedbury, 34 Ill. 459. 87 Though Gen. Corp. Act, § 48, prescribes manner of service on corporations "created under this act," yet as section 3 makes all corporations command of the writ to the person served, whether by reading, copy or mailing, must be according to the statutory requirement; 88 and due endeavor to serve the superior officers preferred by the statute for service must be made before recourse to the next class is warranted.89 It must be served during such hours of the day as the statute prescribes,90 and must also be served a sufficient time before the return day or answer day,91 and if served for a past day is a nulli subject to the act, it applies to preexisting corporations including those formed under a previous constitution. Bay State Gas Co. v. State, 4 Pennew. (Del.) 238, 56 Atl. 1114. As to railroad companies sued before the justice, the Act of March 21, 1850, is exclusive and the Act of March 14, 1853, applies to other corporations. North v. Cleveland & M. R. Co., 10 Ohio St. 548. 88 A statute providing for service on any agent in the county where suit is brought and adding a requirement that the clerk shall mail copy of process to the home office, is imperative as to such mailing without which there is no jurisdiction. Eminent Household of Columbian Woodmen v. Lundy, 110 Miss. 881, 71 So. 16. By New Equity Rule 13 all subpoenas shall be served "by delivering a copy thereof to the defendant personally, or by leaving a copy thereof at the dwelling house or usual place of abode of each defendant with some adult person who is a member of or resident in the family." Former Equity Rule 13 was substantially the process to another county if there be no office, or any person in charge of it, or if the chief officer "cannot be found in such county," the officer must endeavor to find and serve the president unless he knows him to be absent from the county as well as from the office. Hoen v. Atlantic & P. R. Co., 64 Mo. 561. If the superior officer cannot be found on the day service is made, it suffices to warrant service on the next class without waiting to find them, if possible on another day. Cornwall v. Star Bottling Co., 128 Mo. App. 163, 106 S. W. 591. 90'Business' hours means "office hours,'' and service during business hours is good. El Paso & S. W. Ry. Co. v. Kelly (Tex. Civ. App.), 83 S. W. 855, rev'd 99 Tex. 87, 87 S. W. 660. 91 A statute requiring six days was held to exclude the return day of a rule for issuance of an alternative writ of mandamus (Gen. Corp. Act, § 48). Bay State Gas Co. v. State, 4 Pennew. (Del.) 238, 56 Atl. 1114; State v. Bay State Gas Co., 4 Pennew. (Del.) 214, 57 Atl. 291. The Act of 1863 cut down the time from fifteen to ten days repealing Act of 1861, which related to corporations having their offices out of the state. Toledo, L. & B. Ry. Co. v. Shively, 26 Ind. 181. The Act of 1853 required service thirty days before return term if the principal office of defendant railroad was not within the state. Ohio & M. Ry. Co. v. Boyd, 16 Ind. 438. Ten days' service before trial of ty.92 The mode of service must ordinarily be shown by the return.93 § 3010. Delivery of copy, reading, etc. The statutes generally require that copy be left with the person served,94 and it must be such a copy as the requirement contemplates,95 including a copy of the complaint.96 A copy for each service is necessary though two or more services are made on one person.97 Reading and explanation in addition to delivery of copy may be requisite according to the terms stock killing case before justice is legal if corporation does not appear to have its office outside the state. New Albany & S. R. Co. v. McNamara, 11 Ind. 543. On justice summons against a railroad corporation in actions for stock killed, if the principal office is outside the state, at least thirty days must be given before trial (statutes construed). Ohio & M. Ry. Co. v. Boyd, 16 Ind. 438; Michigan Southern & N. I. R. Co. v. Shannon, 13 Ind. 171. Under St. 1785, c. 75, § 8, process against all corporations aggregate must be served thirty days before return day. Bullard v. Nantucket Bank, 5 Mass. 99. Service on July 8th pursuant to direction to serve on or before the 15th gives more than thirty days before a return day on August 9th. State v. Brotherhood of American Yeomen, 111 Minn. 39, 126 N. W. 404. Must be served by attested copy of writ served twenty-eight days before return day (Gen. St. c. 204, §§ 1, 12, 14). Sleeper v. Free Bapt. Ass'n, 58 N. H. 27. Where service is on the president in the county of suit, service need not be ten days before return, as when it is on an agent in another county (Code, §§ 3225, 3227). Jones & Co. v. C. W. Hancock & Sons, 117 Va. 511, 85 S. E. 460. that answer or other defense is required "on or before the twentieth day after service, excluding the day thereof." 92 Iron Clad Mfg. Co. v. Benjamin E. Smith & Sons, 28 N. Y. Misc. 172, 59 N. Y. Supp. 332. A return showing that it was not timely served is insufficient to sustain jurisdiction. Staunton Perpetual Building & Loan Co. v. Haden, 92 Va. 201, 23 S. E. 285. 93 Showing in return, see § 3012, infra. 94 Copy must be left. Code, § 217. Aaron v. Pioneer Lumber Co., 112 N. C. 189, 16 S. E. 1010. Leaving a process with a clerk of the person served making return of service on that day and taking the latter's verbal assurance next day that the service would not be disputed is a practice highly censurable, but it constitutes only a technical defect in service regularly returned. Union Pac. Ry. Co. v. Novak, 61 Fed. 573. 95 Must leave "a true and attested copy." Return of "a copy" left is void. Com. v. Wilmington & R. R. Co., 2 Pearson (Pa.) 408. 96 No copy of the petition need be delivered with the citation if it is served on an agent in the county where the suit is brought. Rev. St. art. 1219. Houston & T. C. R. Co. v. Burke, 55 Tex. 323, 40 Am. Rep. 808. 97 Where a bill pending against the president individually is amended and the corporation is made a party, service of an additional copy on him is By federal New Equity Rule 12, the answer is due twenty days after service, and a memorandum made on the bottom of the subpoena shall state [§ 3011 of the particular statute,98 but one is not equivalent to the other or a substitute for it.99 §3011. Persons qualified to make service; disqualification by interest. The service is to be made by the sheriff or other executive officer of the court, and by statute in some states a disinterested private person acquainted with the defendant is allowed to make the service and prove the same by his affidavit performing the office of a return. This is the rule applicable to a suit against a natural person, and there is no different one for a corporation unless there is a statute establishing one. The authority of a public officer, sheriff or constable, to make service on a corporation is not affected by the fact that the defendant is a corporation, unless he is a person disqualified by interest or other personal cause. A de facto officer 3 and a deputy constable have been held competent. Membership or the holding of stock does not disqualify the person to serve process.5 a necessary service. McRae v. Guion, 58 N. C. 129. 98 The notice subjoined to a declaration in ejectment must be read or explained as well as a copy delivered. Den v. Fen, 10 N. J. L. (5 Halst.) 237. The statute (Practice Act of 1861) does not require that the original be read to the officer served; it merely requires delivery of a copy. The Act of 1862 applying to "companies" was additional but not exclusive. Gillig, Mott & Co. v. Independent Gold & Silver Min. Co., 1 Nev. 247. 99 Reading the summons to the person served is bad. Practice Act of July 1, 1872, requires "leaving a copy," etc. Cairo & V. R. Co. v. Joiner, 72 Ill. 520; Grand Tower Min., Mfg. & Transp. Co. v. Schirmer, 64 Ill. 106 (garnishee summons from justice of the peace). 1 See statutes of the various states. In Wisconsin a service by one other than the sheriff requires that he know the corporate defendant and make affidavit thereof in proof of service. Kernan v. Northern Pac. R. Co., 103 Wis. 356, 79 N. W. 403. An officer or agent of a corpora tion cannot commence an action against a corporation, either as plaintiff or as attorney, by serving himself with the process necessary to commence the action, for when he undertakes to bring the action, he abandons, for the time and occasion, at least, his position as its officer or agent. George v. American Ginning Co., 46 S. C. 1, 57 Am. St. Rep. 671. And see Buck v. Ashuelot Mfg. Co., 4 Allen (Mass.) 357; Rehm v. German Insurance & Savings Institution of Quincy, 125 Ind. 135. 2 See generally treatises on Sheriffs and Constables; Process. 3 Alabama & V. Ry. Co. v. Bolding, 69 Miss. 255, 30 Am. St. Rep. 541, 13 So. 844. 4 Constable's deputy, a private citizen. New Albany & S. R. Co. v. Grooms, 9 Ind. 243. 5 Merchants' Bank v. Cook, 4 Pick. (Mass.) 405; Searsburgh Turnpike Co. v. Cutler, 6 Vt. 315. But see contra, Dunmore Mfg. Co. v. Rockwell, Brayton (Vt.) 18. And see Washington Ins. Co. v. Price, 1 Hopk. Ch. (N. Y.) 1. A clerk of court who is a stock § 3012. Return or proof of service-In general. The return is "a short account in writing made by the sheriff or other ministerial officer of the manner in which he has executed a writ."6 Pursuant to the general law on the subject, it is the duty of the officer or server to make return of the execution of the process, or an affidavit of the facts under some of the statutes, and this should be done on the return day or the day appointed by law or named in the writ.? As such it enters into the record and there forms the evidence of the mode by which the jurisdiction of the court over the person of the corporation was acquired. It therefore must show truly and accurately all of the facts made necessary by the statutes to authorize the service and sustain it as made, according to the statute applicable to the holder may sign a writ for the corporation plaintiff. Vermont Mut. Fire Ins. Co. v. Cummings, 11 Vt. 503. 6 Stephen on Pleading (Tyler's Ed.), p. 55; Cyc. Law Dict., "Return." 7 See Stephen on Pleading (Tyler's Ed.), p. 55. See also the local statutes as to when return should be made. 8 Delaware. Return of service of a rule and also a writ on the president held sufficient. State v. Bay State Gas Co., 4 Pennew. 214, 57 Atl. 291. Louisiana. Must show service at office of corporation, that designated officer if not president was served, and that inquiry was made to ascertain what officer was present amenable to service. Prince v. Tremont & G. R. Co., 128 La. 834, 55 So. 474; Welch v. New Orleans Great Northern R. Co., 128 La. 738, 55 So. 338. Should state that name of person was known to officer or was learned by inquiry, and should state day, month and year of service. Return held bad under Code Prac. arts. 201-203. O'Hara v. Independence Lumber & Improvement Co., 42 La. Ann. 226, 7 So. 533. In action against a religious corporation, return must show that person served was rector (president) or that he was agent and that service was at its office. Municipality No. 1 v. Christ Church, 3 La. Ann. 453. Michigan. Held sufficient on face to serve president. Wilson v. California Wine Co., 95 Mich. 117, 54 N. W. 643. Mississippi. Return of summons as follows: "I have this day executed the within writ personally upon the within-named defendant, the Iowa Packing & Provision Company, by handing to E. N. Nagle, the agent of said Company, a true copy of this writ," was valid on its face. Lamb v. Russell, 81 Miss. 382, 32 So. 916. Missouri. Sufficiency in general. Hudson v. St. Louis, K. C. & N. Ry. Co., 53 Mo. 525; Holtschneider v. Chicago, R. I. & P. R. Co., 107 Mo. App. 381, 81 S. W. 489. Garnishment service. Antonelli v. Basile, 93 Mo. App. 138. Return held insufficient to show service in accordance with Rev. St. 1899, 995, on town mutual insurance company. Thomasson v. Mercantile Town Mut. Ins. Co. (Mo. App.), 81 S. W. 911. Ohio. Harrow v. Ohio River R. Co., 38 W. Va. 711, 18 S. E. 926. West Virginia. Return held sufficient to show service on "depot or station agent' under Code, c. 52, § 20. Douglass v. Kanawha & M. R. Co., 44 W. Va. 267, 28 S. E. 705. See also cases cited hereafter in this section. See also local statutes as to what the return must contain. |