Liberty Brand Canning Co. v. American Stores Co.

Headnote

Corporations — Service on Assistant Secretary of Corporate Resident Agent Insufficient.

Under 28 Del. Laws, c. 102, § 5, requiring as to service of process on a corporation's resident agent, that, if the latter be a corporation, the service may be made on its secretary, service on the assistant secretary is not sufficient.

On motion to vacate return of service. The return of service in this case was as follows:

“Summoned American Stores Company, a corporation of the staté of Delaware, by serving the within writ personally and delivered a copy thereof to Robert L. Spurgeon, assistant secretary of Corporation Guarantee & Trust Company, corporate resident agent in the state of Delaware of said American Stores Company, a corporation as aforesaid, on the 20th day of August, 1921, it being more than six days before return day; the president or other head officer of said American Stores Company, a corporation as aforesaid, not residing in the state of Delaware.

“So ans. Joseph H, Gould, Sheriff.”

28 Delaware Laws, p. 288, §5, prescribes the mode and manner of service of legal process on corporations. It requires that service be made either on the president, or, if he lives out of the state, on the secretary or one of the directors of the defendant corporation—

“or upon the resident agent in charge of the principal office of the company in this state. _ * * * If such resident agent be a corporation, service of process upon it as such agent may be made by serving a copy thereof on the president or secretary or any director of said corporate resident agent.”

In 1 Woolley on Delaware Practice, § 191, it is stated:

“With respect to service upon corporations created under .the General Corporation Act, there is no doubt that the method of service is such and is only such as is stated in the foregoing provision, and any return upon a writ which shows that the service was made not in strict conformity with one of the several provisions of this section, will, on motion, be vacated and set aside.”

Again, at section 201, the same author states:

. "The officer must simply state the manner of service. This statement must be in some intelligible form of expression, and must show, without resort to extraneous evidence, that the acts of the officer were responsive to the mandate of the writ, and that the service complied fully with every requirement of the law pertaining to service.”

Again, at section 213, the same author states:

“If the service is made upon an officer of a corporation, other than such an officer contemplated by the statute, the court will, on motion, set the return aside. ”

In 3 Thompson on Corporations (2d Ed.) § 3056, it is stated that:

“The cases are both numerous and unanimous on the proposition that, where a particular method of serving process is provided by statute, that method must be followed. The rule is said to be especially exacting in reference to corporations. It is also the rule in connection with the service of process on corporations, that when a statute designates a particular officer, or a particular person, or class of persons, on whom the process shall be served, the direction must be followed, and no other officer or person can be substituted in his place. The very designation of one particular officer for such service excludes all others.”

In Winslow v. Staten Island R. R. Co., 51 Hun 298 , 4 N. Y. Supp. 169 , the return showed service on the assistant treasurer.

Section 431 of the New York Code provided for service of a summons upon a defendant being a domestic corporation by delivering a copy thereof—

“within the state, to the president or other head of the corporation, to the secretary or clerk of the corporation, or the cashier, treasurer, director or managing agent.”

The cotut held there was no sufficient service. At page 300 of 51 Hun ( 4 N. Y. Supp. 170 ) the court say:

“But where the statute prescribes that jurisdiction is to be obtained in a particular way, then the requirements of the statute must be complied with or jurisdiction cannot be acquired. If there are any hardships under the law, it is not for the courts to amend the statute, because that is a duty which is imposed upon the Legislature.”

In Karns v. State Bank & Trust Co., 31 Nev. 170 , 101 Pac. 564 , the court said:

“The return of the sheriff states that he personally served the summons on the State Bank & Trust Company, a corporation, by delivering to and leaving with C. H. Wise, the assistant cashier and managing agent of said State Bank & Trust Company, a corporation, the president, secretary, and cashier being absent from and non-residents of Esmeralda county.”

The statute provided that:

“Service upon a corporation organized under the laws of this state shall be upon the ‘president or other head of the corporation, secretary, cashier or managing agent thereof. ’ "

The service was held insufficient.

Counsel for the plaintiff, the Liberty Brand Canning Company, admitted that the service was insufficient.