Opinion
April Term, 1901.
Clarence D. Cruikshank, for the appellant.
Alfred R. Page, for the respondent.
In regard to service of a summons on a foreign corporation, section 432 of the Code of Civil Procedure provides that it shall be made on certain officers specified in subdivision 1 or upon "a person designated for the purpose by a writing * * * filed in the office of the Secretary of State;" and by subdivision 3 of the same section it is provided: "If such a designation is not in force or if neither the person designated nor an officer specified * * * can be found with due diligence, and the corporation has property within the State or the cause of action arose therein," service can be made by delivering a copy of the summons "to the cashier, a director or a managing agent of the corporation within the State." That the cause of action alleged arose in this State appears from the complaint.
Upon the affidavits we would not be justified in reaching a conclusion different from that of the Special Term in holding that Dorschel, for the purposes of this litigation, must be regarded as the managing agent of the defendant in this State. It will be noticed that the motion to set aside the service is not made upon affidavits of any officer of the corporation, but is supported solely by Dorschel's own affidavits, who, though in this as in other matters connected with the defendant's business in this State, appears to have been the only one here engaged in managing its affairs, asserted that he was not the managing agent. The answering affidavits show that he had made different statements as to his relation to the corporation, and though the agency itself could not be proved solely by his declarations to third parties, they would militate and destroy the force of his statements and the conclusion in his affidavits that he was not the managing agent. In view of his relation to the corporation, the fact that he alone represented it in this State under a power of attorney, together with the other facts appearing, the question of his agency was left for the determination of the judge at Special Term, with whose conclusion we think we should not interfere.
It is insisted, however, that even if Dorschel is the managing agent of the corporation, the plaintiff has not complied with the provisions of the Code entitling him to make service upon him because he has failed to show that there was no person designated upon whom service could have been made or that he used due diligence to serve one of the officers of the defendant specified.
The defendant is right in contending that under the Code, before there can be service upon a managing agent, it must be made to appear that no person has been designated upon whom service could be made and that the other officers enumerated cannot with due diligence be found within the State. But although these facts must appear, in determining the amount of proof that should be given by the plaintiff, it is important to keep in mind the manner in which the question is usually, as it is here, presented to the court. The plaintiff, in the first instance, assumes the responsibility of serving the proper party. Should the defendant then desire to have such service set aside, he proceeds to do so upon a motion and by affidavits tending to show that the person served was not the proper party. If upon his showing it appears that no person was designated upon whom service could be made, and that the other officers of the corporation specified could not with due diligence be served within the State, it is entirely unnecessary for the plaintiff to affirmatively make proof of what is admitted.
Although insisting that plaintiff did not prove these essential facts, the defendant entirely overlooks what clearly appears from its own affidavits that such facts are virtually admitted. Thus Dorschel swore that the officers upon whom service could be made are all of Milwaukee, the home of the defendant, and that the defendant "has no property within this State; * * * that defendant has no office or place of business in this State, nor has it any business in this State of any kind or nature." And the inference thus to be drawn, that there was no designation filed because the corporation did no business here and had no office or officer here, is supported by that portion of the plaintiff's affidavit which is not denied, that "deponent believes that no officer or other manager of the defendant corporation was present in the State and acting as such officer or manager during the occasions hereinbefore referred to, or at the time of the service of the summons and complaint," and by two of the opposing affidavits which aver that Dorschel had stated that he was the principal stockholder in the defendant corporation and had the entire management of its business within this State.
In view of the fact, therefore, that the only ground upon which the motion to set aside the service was based was that Dorschel was not the managing agent, and that in the affidavits in support of the motion — inferentially if not expressly — it appears that no designation had been made, and no officer of the company could, with due diligence, be found within the State, we think that the proof presented by the plaintiff, though slight, was sufficient. We do not hold that the requirements of the Code referred to are to be ignored, but, on the contrary, they are to be given reasonable force and effect; and were it not for the defendant's attitude upon the motion in regard to these matters, more would have been required of the plaintiff. In other words, where, upon a motion to set aside the service, it is practically admitted that no person was designated and that none of the other officers than the managing agent could be found, it is unnecessary to furnish affirmative proof of these facts.
The manner in which the questions are presented is important, and for that reason we have called attention to the fact that the motion here was made by the defendant, and in the affidavits in support of the motion it is shown that diligent search would be idle. Apart from this, we think the plaintiff has shown in the opposing affidavits that diligence would not have discovered an officer of the defendant or any proper person other than Dorschel upon whom to make service because he alleges that there is no such person in the State, and this is not denied.
We think, therefore, that the order was right and should be affirmed, with ten dollars costs and disbursements.
PATTERSON and INGRAHAM, JJ., concurred; VAN BRUNT, P.J., and RUMSEY, J., dissented.
I dissent from the conclusion arrived at in this case. Section 432 of the Code provides how a service may be made upon a foreign corporation. It says: "Personal service of the summons upon a defendant, being a foreign corporation, must be made by delivering a copy thereof within the State as follows:" Subdivisions 1 and 2 designate certain persons upon whom the service may be made. It is not claimed that the provisions of these two subdivisions were complied with. But the service is claimed to have been made under subdivision 3, which provides as follows: "If such a designation is not in force, or if neither the person designated, nor an officer specified in subdivision first of this section, can be found with due diligence, and the corporation has property within the State, or the cause of action arose therein; to the cashier, a director, or a managing agent of the corporation within the State." Therefore, when a service upon the persons mentioned in subdivision 3 is attempted to be justified, it is necessary that the plaintiff should show, either that the designation mentioned in subdivision 2 is not in force, or that the person designated, or an officer specified in subdivision 1, cannot be found within the State with due diligence.
There is not the slightest particle of evidence that any effort was made to serve the summons as prescribed in subdivisions 1 and 2, or that any inquiries were made as to whether there were any officers upon whom that service might be made pursuant to said subdivisions within this State at the time the service was made upon the alleged managing agent.
It seems to me that in order to confer jurisdiction upon the court it was necessary for the plaintiff to establish this fact where a direct attack was made upon the service, precisely the same as would be required in the case of a publication of a summons.
The order should be reversed and the motion to set aside the service granted.
RUMSEY, J., concurred.
Order affirmed, with ten dollars costs and disbursements.