Arkansas Construction Co. v. Mullins , 69 Ark. 429 ( 1901 )

Hughes, J.,

(after stating the facts). The return of service on the writ of garnishment in this cause shows no sufficient service, because: (1) It does not appear from the record that the Arkansas Construction Company was a foreign or domestic corporation. If it was a domestic corporation, the return is not sufficient, because it does not show that the president of the company, mayor, and chairman of the board of trustees were absent when the service was made on an agent. Section 5669 provides that: “Where the defendant is a corporation, created by the laws of this state, the service ■ of the summons may be upon the 'president, mayor, or chairman of the board of trustees, and, in case of the absence of the above officers, then it may be served upon the cashier, treasurer, secretary, clerk or agent of such corporation.” Ark. Coal &c. Co. v. Haley, 62 Ark. 144. (2) If the appellant

was a foreign corporation, the return was insufficient, because it does not show that the agent upon whom service was had had been designated by the company to receive service of process. Section 1323, Sandels & Hill's Digest. (3) Because it does not appear from the return or any part of the record that the agent upon whom service was had was of such character of agent “as to render it fair, reasonable and just to imply an authority on the part of the agent to receive service and that the law will and ought to draw such an inference.” Conn. Mut. Life Ins. Co. v. Spratley, 172 U. S. 602.

Tinder such circumstances, where the corporation is doing business in the state, service upon such an agent is good, under section 5672, Sandels & Hill’s Digest, as we held in the case of Lesser Cotton Co. v. Yates, ante, p. 396. Section 5672 is as follows: “Where the defendant is a foreign corporation, having an agent in this state, the service may be upon such agent.” Henrietta Mining & Milling Co. v. Gardner, 173 U. S. 124. The character of the agent nowhere appears in the record, and the simple fact that he was agent (it may be, without any representative character from which authority might and ought to be implied on his part to receive service) is not sufficient.

Judgment reversed, and cause remanded, with directions to proceed in the cause; the appellant having entered his appearance by appealing in this cause.