Hamberg — Bremen, Fire Insurance v. Moses , 3 Tex. L. R. 272 ( 1884 )

OPINION.

Watts, J.:

That the pretended service upon Griffin was ineffectual to bind plaintiffiu error, admits of no question. It is alleged in the petition that he had been discharged, and his authority as local agent of Lampasas county, withdrawn; whatever might have been the motive that prompted his removal is not material, for it affirmatively appears that he was not such local agent when the pretended service was had. The Statute authorizes service upon corporations to be made upon their local agents but not upon persons who may have previously occupied that relation to the corporation. As Griffin was not the local agent at the time of the pretended service, it was no more efficacious than if it had been made upon any other stranger to plaintiff in error. Hence this branch of the question will be pretermitted in the further consideration of the caso.

As to the mode of obtaining service in this class ol' cases the statutes provides “To suits against any incorporated company or joint stock association, the citation may be served upon the president, secretary or treasurer of such company or association, or upon the local agent representing such company or association, in the county in which suit is brought, or by leaving- a copy of the same at the principal office of the company during office hours. (R. S., Art. 1228.

It appears from the allegations in the petition, that plaintiff in error is a domestic corporation, with its principal office at the City of Austin, in Travis county, and that it had no local agent in Lampasas county when this suit was brought.

To authorize a judgment by default against a corporation or joint stock company, the process must be served in the manner prescribed by the statute. It is not made to appear that Lauve occupied the position of either president, secretary or treasurer of the corporation. And it is affirmatively shown that he was not the local agent in Lampasas county. There is no provision of statute that authorizes the service to be made upon a general agent. And it can not be held that service of such agent is equivalent to leaving a copy of the process at the principal office of the corporation during office hours.

For a proper disposition of this case, it is sufficient to hold that the corporation was not served with process in any of the modes prescribed by statute, and therefore the judgment by default was unwarranted.

It is not necessary to determine the question as to the sufficiency of the process itself, the statute directs that the defendant shall ,be summoned to appear and answer the petition, and whether in view of the provisions of article 1245 Revised Statutes, it is or not essential that the process should follow the statute in that particular, certainly it is more regular that it should do so. Our conclusion is that the judgment ought to be reversed and the cause rnnanded.