Drew Lumber Co. v. Walter

On February (>th, 1897, a summons issued to the plaintiff in error at the instance of defendants in error to answer (hem in an action of trespass, the damages claimed being- $1,000. The sheriff made the following return on (lie summons: “'Received this summons (1th Feby., 1897, and served the same 11th Fcby., 1897, by delivering a true copy thereof to the within named defendant, George L. Drew, General Manager of the Drew Lumber Co.” Plaintiff in error entered a special appearance and filed a motion to quash the service and reiurn of summons on the grounds (1) that service was no! -made as provided and required by law, in that at templed service thereof was made on the treasurer of the' company, but not in the absence of its president, vice-president or other head; (3) that the return did not show valid and sufficient servic<>; and (3) that the return, in so far as if alleged service on the company, was false. The motion was denied, and an, exception "noted by the plaintiff In error. Thereafter a default was entered against, defendant, damages subsequently assessed by a jury on e,v parte evidence at $900, for which judgment; was duly entered.

The first assignment of error, and the only one necessary to be considered, is that the court erred in overruling the motion of Drew Lumber Company to quash the service and return of the writ. . Service upon private corporations is regulated by the provisions of section 1019 *254of the Revised Statutes. That section provides as follows : “Process against a corporation, domestice or foreign, may he served: 1. Upon the president or vice-president or other* head of the corporation. In the absence of such head: 2. Upon the cashier, or treasurer, or secretary, or general manager; or, in the absence of all the above: 3. Upon any director of such company; or, in the absence of all of the above; 4. Upon any business agent resident in the county in which the action is brought. 5. If a foreign corporation shall have none of the foregoing officers or agents in this ¡State, service may be made upon any agent transacting business for it in this State.” It is uniformly held under such statutes that a returh showing service upon an inferior officer or agent of a corporation, in order to bind the corporation, must show the absence of all officers of-a superior class designated in the statute ns those upon whom service shall be had. before resort is had to service upon one of an inferior class. The absence of all members of a superior class is a condition precedent to the validity of service upon a member of an inferior class. This is the clear and explicit language of the statute, and courts can not ignore tin* expressed intention of the legislature. Cairo and Fulton R. R. Co. v. Trout, 32 Ark. 17; Arkansas Coal. Gas, Fire-Clay & Manufacturing Co. v. Haley, 62 Ark. 144. 34 S. W. Rep. 545; St. Louis, Alton & Terre Haut R. R. Co. v. Dorsey, 47 Ill. 288; Chicago Planing Mill Co. v. Merchants’ Nat. Bk. 86 Ill. 587; Toledo, Wabash and Western. Ry. Co. v. Owen, 43 Ind. 405; Southern Express Co. v. Hunt, 54 Miss. 664; Lung Chung v. Northern Pac. Ry. Co., 19 Fed. Rep. 254; Miller's Admr. v. Norfolk & W. R. Co., 41 Fed. Rep. 431; Collins v. American Spirit Mfg. Co., 96 Fed. Rep. 133; 6 Thompson on Corporations, 7545; Alderson *255on Judicial Writs, &c., 192; 19 Eucy. PL & Pr., 637;'18 Ibid. 926. It follows that the judgment should be reversed, but under the decisions of this court the prosecution of a writ of error from such a judgment operates as a general appearance when the cause is remanded to the court below, and lienee the judgment should be reversed with directions to permit the defendant to file such pleadings as it may desire within such reasonable time as the Circuit Court may determine. Standley v. Arnow, 13 Fla. 361.

This cause being rea (died for final adjudication, was hbretofore referí ed by the court to its commissioners for investigation who reported the same recommending reversal for the reasons stated in the foregoing opinion prepared by Commissioner Glen. Upon duo consideration by Division A of 1.1h> court the said foregoing opinion is hereby adoofed and ordered to be filed as the opinion of the court in said cause, and for the reasons stated in said opinion it is hereby considered, ordered and adjuded that the judgment of the Circuit Court in said cause be, and tin- same is hereby, reversed at the cost of the defendants in error, with directions to permit the plaintiff in error, as defendant below, witliin a reasonable time to be fixed by the Circuit Judge, to file sncli pleadings as it may be advised.