Wamsley v. H. L. Horton & Co.

Headnote

1. Reference.

References under § 1015 of the Code, in respect to disputed questions of fact arising upon motions, should only he resorted to when such a reference is absolutely necessary to determine questions of fact which are of vital importance.

8. Same—Motion to set aside service on foreign corporation.

Such a reference should not be granted where the motion’is to set aside the service of a summons upon the ground that the person served was not

an officer of tlie defendant, a foreign corporation, and the affidavit of such person simply states that he was not an officer when served, although he had heen, and that he was the principal stockholder, but the motion should be denied.

Appeal from order of reference.

The following is the opinion of the court below:

Barrett, J.—The defendant, a foreign corporation, moves to set aside the service of the summons herein upon the ground that Mr. Horton is not an officer of the company, but merely a director thereof. In his original affidavit, upon which the application was based, Mr. Horton states that on the 9th day of January, 1893, when the summons was served upon him, he was neither “ president, treasurer, secretary, cashier, nor managing agent of the defendant. The plaintiff opposed the application upon an affidavit showing that the defendant has no president, but that the chairman of its board of directors performs functions corresponding to that of president. The affidavit then states that in September last he examined the record of the formation of this corporation, which showed that Mr. Horton owned nearly all its stock, and was chairman of its board of directors. To-this affidavit Mr. Horton now replies that he was not such chairman when the - summons was served upon him. He does not deny that he was chairman in September last, nor that he is the principal owner of the stock of the defendant. He thus, in substance, admits the facts stated in the opposing affidavit, but seeks to avoid them by the statement that, though' he was chairman in September, 1892, he was not chairman on the 9th day of January, 1893. In my judgment, he was called upon to state the facts which effected the change. It may well be that, in law, he is still chairman, notwithstanding his belief to the contrary. When we know the precise facts with regard to the alleged change in the situation we will be better able to judge whether the broad assertion that he was not chairman on the 9th day of January, 1893, is an accurate statement of fact, or an inaccurate conclusion from the actual facts. The plaintiff should not be thrown out of court upon a bald assertion 'which frank disclosure of the circumstances may prove to be inaccurate. The very fact that counsel protested against any further inquiry looking to the examination of Mr. . Horton adds to the doubt created by the suspicious reserve of the replying affidavit. Upon the whole, I think such further inquiry essential to a correct disposition of the motion, and accordingly direct a reference as to the question of fact involved.