Lesser Cotton Co. v. Yates , 69 Ark. 396 ( 1901 )

-Hughes, J:,

(after stating the -facts). We do not think- that either the case of the Southern Building Loan Association v. Hallum, 59 Ark. 583, or the case of Union Guaranty & Trust Company v. Craddock, id: 593,'is decisive of the question in this case. In' the former of these' two cases, this court held that -there could lie -no' valid service upon a corporation out of the county where the suit was brought^ except by serving an agent designated by the company to receive service under the statute, and that the evidence in that case did-not show that the person-served had been designated as- such agent. In the Craddock case it is simply held, in substance, that section '4137 of Sandels & Hill’s Digest provides the exclusive method for obtaining-service upon a foreign -insurance corporation doing business'in this state. Neither of these, cases hold directly or by -necessary implication -that section 5-672 of. Sandels & Hill’s Digest was repealed by section- 1323, Sandels. & Hill’s Digest (act- of April 4, 1887) Section 5.672 'reads- as follows: “When-the-defendant .is a foreign corporation,.. having._an agent in this state, the service may be upon such agent.” Section 1323 is as follows: “Before any foreign corporation shall begin to carry on business in. this state, it shall, by its certificate under the band of the president.and seal of such company, filed in the office of the secretary of state, designate an agent, who shall be. a citizen of this state, upon whom service .of summons and other, process may be made. Such certificate shall also state the principal place of business of such corporation in this state. Service-upon such agent shall be sufficient to give jurisdiction over such corporation to any of the courts of this state.”

It docs not appear that this section (1323) is in conflict .with section 5672, or that it- repeals the same. It leaves it .in force, as there seems to be no necessary conflict.

The supreme court of the United States, in the .case of the Henrietta Mining & Milling Company v. Johnson, 173 U. S. 221, had before it a case involving the construction of substantially .similar provisions of the statutes of the Territory of Arizona. A statute provided, in substance, that foreign corporations should file with the secretary of the territory and the county recorder in the county in which they do business the appointment of an agent upon whom process coold be served. There was also a provision in .the civil code of procedure that process against any incorporated company could be served upon certain designated officers, or upon the local agent representing such company in the county where the suit was brought. The service in the case was had upon the general manager of a foreign corporation, in the county where it did business. There was also provision for constructive service. It was contended that no personal judgment could be rendered upon such service; that only service upon the designated agent was good in that case to warrant a personal judgment. The court said of these three sections which we have referred to: “We are of the opinion, however, that sections 318, 712 and 713, providing specially for service upon foreign corporations, were not intended to. be exclusive, and were merely designed to secure a special mode of service in case the corporation had ceased to do business in the territory, or had-no local or official agent appointed in pursuance of section 348. Not only is the language of section 3.48 permissive in the use of the words 'may be served’ upon the agent, appointed under the statute, but the general language, of section 704,; taken in connection with the general subject .of the statute, ‘Process -and Returns/ indicates that no restriction was. intended- to domestic corporations; and that the words ‘any incorporated .company or joint stock association’ are as applicable to foreign as to domestic .companies.” It will be noticed that one difficulty in that case is removed in this, for our section 5672 expressly provides for foreign corporations. The court continues: “If, as contended by the plaintiff in error, the remedy against foreign corporations be confined to service of process upon such appointed agent, it results that, if the corporation does not choose to file such appointment, intended suitors are confined to the remedy by publication provided by section 712-, which, under the decisions of this court, would be ineffectual to sustain a personal judgment/’ It is incredible that the legislature should have intended to limit its own citizens to such an insufficient remedy, when the corporation is actually doing business in the territory, and is represented there by a manager or local agent/’ Then the court called attention to the decision of this court in Southern Building & Loan Association v. Hallum, 59 Ark. 583, which had been pressed upon it as a decision to the contrary of this proposition. But the court placed upon this decision the construction which we have placed upon it in this opinion, showing that it was intended by this court to hold that service in one county upon an agent there for a suit brought in another county is not good service unless the agent be designated by the statute providing that service may be had upon such designated agent any where in the state. This decision commends itself to our judgment as sound, and, being approved, is decisive of the case at bar. We do not decide, however, that service upon any agent of a foreign corporation in this state would be good. That question is not raised by the record, and not decided herein. We mean and hold that where“the character of an agency of a foreign corporation is. such as to render it fair, reasonable and just to imply an authority on the part of the agent to receive service, the law will, and ought to, draw such an inference and imply such authority, and service-under such circumstances and upon an agent of that character is. sufficient. Conn. Mut. L. Ins. Co. v. Spratley, 172 U. S. 602. Such was the character of the agent in this case upon whom serviee-was had.

The plaintiff, the complaint alleged, “was doing business at Fort Smith, and J. A. Skipwith was its only agent.” The court, found this as a fact. The agreed statement of facts in the case-shows that Skipwith managed and controlled appellant’s business at Fort Smith during the time the matters complained of occurred. The service upon him as an agent who from his character as such agent was authorized to receive service was sufficient.

Judgment affirmed.