Troy Lumber Co. v. State Sewing Machine Corp. , 233 N.C. 407 ( 1951 )

WiNBORNE, J.

The assignments of error presented by appellants on this appeal are founded upon exception to the signing of the judgment from which the appeal is taken. Such assignment of error raises only the questions as to (1) whether the facts found by the judge of Superior Court support the judgment, and (2) whether error in matters of law appear upon the face of the record. Simmons v. Lee, 230 N.C. 216, 53 S.E. 2d 79; Culbreth v. Britt Corp., 231 N.C. 76, 56 S.E. 2d 15, and cases there cited. See also S. v. Black, 232 N.C. 154, 59 S.E. 2d 621. It does not bring up for review the findings of fact or challenge the sufficiency of the evidence upon which they are based. Burnsville v. Boone, 231 N.C. 577, 58 S.E. 2d 351; Bailey v. McPherson, ante, 231, and cases cited, and numerous others.

Within the purview of these principles, appellant states and debates in this Court three questions” of law:

1. Does the return of the sheriff entered on the summons show service of it on defendant?

2. Was defendant doing business in the State of North Carolina?

3. Was Al Chaliff a proper person upon whom service on defendant, a corporation, could be had?

We hold that each question merits an affirmative answer.

In this connection it is appropriate, at the outset, to note certain pertinent statutory provisions.

“An action against a corporation created by or under the law of any other State or government may be brought in the Superior Court of any county in which the cause of action arose, or in which the corporation usually did business, or has property, or in which the plaintiffs, or either of them, resides, by a resident of this State for any cause of action.” G.S. 1-80 (1).

Moreover, every corporation having property or doing business in this State, whether incorporated under its laws or not, shall have an officer or agent in this State upon whom process in all actions or proceedings against it can be served. G.S. 55-38.

A summons in a civil action must be directed to the sheriff, or other proper officers of the county or counties in which the defendants, or any of them, reside or may be found; and it must command the sheriff or other proper officer to summon the defendant, or defendants, to appear and answer, etc. G.S. 1-89.

“The officer to whom the summons is addressed must . . . serve it by delivering a copy thereof to each of the defendants.” G.S. 1-94.

The manner of delivering summons, if the action be against a corporation, shall be to, among others, the “managing or local agent thereof”; and “any person receiving or collecting money in this State for a corporation of this or any other State or government is a local agent for the purpose of this section”; but “such service can be made in respect to a foreign corporation only when it has property, or the cause of action arose, or the plaintiff resides, in this State, or when it can be made personally within the State upon the president, treasurer or secretary thereof.” G.S. 1-97 (1).

These statutes prescribe how the sheriff shall make service, and his duty as to the manner of discharging it. And when the sheriff returns that he has “served” the summons, this implies that he has discharged his official duty in that respect, that is, that he has served it according to law. Strayhorn v. Blalock, 92 N.C. 293; McDonald v. Carson, 94 N.C. 498; Isley v. Boon, 113 N.C. 249, 18 S.E. 174; S. v. Moore, 230 N.C., 648, 55 S.E. 2d 177.

In the Moore case, supra, Barnhill, J., considering a sheriff’s return on a sci. fa., pertinently stated: “ ‘Served’ implies service as by law required. So then the return ‘Served’ or as here ‘Served on Tar Heel Bonding Company’ . . . signed by the officer in his official capacity is sufficient — at least prima facie- — to show service.”

Testing tbe return, now being considered, by tbe provisions of tbe statutes, and decisions of tbis Court, expressly service- was made on eacb defendant. And since there is only one defendant, State Sewing Machine Corporation, and since A1 Chaliff is not a defendant, tbe service on him was manifestly in bis capacity as an agent of tbe corporation.

On tbe other band, appellant, while conceding that tbe summons commands tbe sheriff to serve tbe defendant, contends that tbe return does not show service of it on defendant, and purports to show only service on tbe individual named. In support of tbis position, appellant cites and relies upon tbe cases of Plemmons v. Improvement Co., 108 N.C. 614, 13 S.E. 188, and Hassell v. Steamboat Co., 168 N.C. 296, 84 S.E. 363.

These cases, however, are clearly distinguishable from, and inapplicable to tbe case in band.

In tbe Plemmons case, supra, tbe summons commanded tbe sheriff to summon “A. H. Bronson, President of tbe Southern Improvement Company,” and it was so served. Tbe Court held tbe service was legal only as to tbe individual, and that tbe super-added words “President, etc.” were a mere descriptio. personae, as would be tbe words “Jr.” or “Sr.” A similar situation was involved in tbe Hassell case. Also the case of Hogsed v. Pearlman, 213 N.C. 240, 195 S.E. 789, cited by appellant is distinguishable.

Passing to the second question: On the facts found, was defendant doing business in tbe State of North Carolina so as to render it amenable to process in tbe courts of tbe State ?

Tbe phrase “doing business in tbe State” has been tbe subject of consideration in several decisions of tbis Court with respect to statutes relating to service of process on foreign corporations. In Timber Co. v. Ins. Co., 192 N.C. 115, 133 S.E. 424, it is said: “No all-embracing rule as to what is ‘doing business’ has been laid down. Tbe question is one of fact, and must be determined largely according to tbe facts of eacb individual case, rather than by tbe application of fixed, definite and precise rules.”

Also in Trust Co. v. Gaines, 193 N.C. 233, 136 S.E. 609, we find these expressions : “It has been generally held that a foreign corporation cannot be held to be doing business in a State, and therefore subject to its laws, unless it shall be found as a fact that such corporation has entered tbe State in which it is alleged to be doing business, and there transacted, by Its officers, agents or other persons authorized to act for it, tbe business in which it is authorized to engage by tbe State under whose laws it was created and organized. Tbe presence within tbe State of such officers, .agents or other persons, engaged in tbe transaction of tbe corporation’s business with citizens of tbe State, is generally held as determinative of tbe question as to whether tbe corporation is doing business in tbe State,” citing Timber Co. v. Ins. Co., supra, and other cases.

And in Ruark v. Trust Co., 206 N.C. 564, 174 S.E. 441, tbe Court declared: “Tbe expression ‘doing business in tbis State’ as used in C.S. 1137, means engaging in, carrying on, or exercising in tbis State, some of tbe things, or some of tbe functions, for wbicb tbe corporation was created.” (The statute C.S. 1137 is now G.S. 55-38 hereinabove cited.)

See also tbe case of C. T. H. Corp. v. Maxwell, Commr. of Revenue, 212 N.C. 803, 195 S.E. 36, in wbicb tbe term “doing business,” as used in statute imposing corporate franchise tax, is treated.

Moreover, the case of St. Louis S. W. R. Co. v. Alexander, 227 U.S. 218, 33 S. Ct. 245, 57 L. Ed. 486, tbe Supreme Court of tbe United States bad tbis to say: “This Court has decided each case of tbis character upon tbe facts brought before it, and has laid down no all-embracing rule by wbicb it may be determined what constitutes tbe doing of business by a foreign corporation in such manner as to subject it to a given jurisdiction. In a general way it may be said that tbe business must be such in character and extent as to warrant tbe inference that tbe corporation has subjected itself to tbe jurisdiction and laws of tbe district in wbicb it is served, and in which it is bound to appear when a proper agent has been served with process.”

Measuring tbe facts found in the present case by these principles, it is clear that defendant was engaging in, carrying on, and exercising in' tbis State some of tbe functions for wbicb it was created, — which are of such character and extent as to warrant tbe inference that it has subjected itself to tbe jurisdiction and laws of tbe State of North Carolina in wbicb it is served.

Tbe third question then arises: Was tbe service of summons upon a proper agent of defendant — within tbe meaning of tbe term “managing or local agent” as used in tbe process statute G.S. 1-97 (1) ?

Tbis Court has held that tbe words in tbe statute “any person receiving or collecting money within tbis State for or on behalf of any corporation of tbis or any other State or government shall be deemed a local agent for tbe purpose of tbis Section,” Code 217, now G.S. 1-97 (1), are not intended to limit service to such class of agents, but to extend tbe meaning of tbe word “agent” to embrace them; that tbe authority to receive money, of itself, constitutes tbe one so authorized a local agent, but tbis is not tbe exclusive test of agency. Copland v. Telegraph Co., 136 N.C. 11, 48 S.E. 501; Whitehurst v. Kerr, 153 N.C. 76, 68 S.E. 913.

In the Whitehurst case, supra, Holce, J., speaking to tbe subject of tbe meaning of tbe term “local agent” as used in Rev. 440 (1) now G.S. 1-97 (1), gave tbis summary: “While there is some apparent conflict of decision in construing these statutes providing for service of process on corporations arising chiefly from tbe difference in tbe terms used in tbe various statutes on tbe subject, tbe cases will be found in general agreement on the position that in defining the term agent it is not the descriptive name employed, but the nature of the business and the extent of the authority given and exercised which is determinative, and the word does not properly extend to a subordinate employee without discretion, but must be one regularly employed, having some charge or measure of control over the business entrusted to him, or of some feature of it, and of sufficient character and rank as to afford reasonable assurance that he will communicate to his company the fact that process has been served upon him.”

To like effect are Lumber Co. v. Finance Co., 204 N.C. 285, 168 S.E. 219; Service Co. v. Bank, 218 N.C. 533, 11 S.E. 2d 556.

Applying these principles to the facts found in this case, we concur in the ruling that Al Chaliff was a “managing or local agent” of defendant within the purview of G.S. 1-97 (1), on whom process could be served in the State of North Carolina at the time summons was served.

Hence the judgment below is

Affirmed.