#### J. A. VOLIVAR v. RICHMOND CEDAR WORKS.

(Filed 27 May, 1910.)

Foreign Corporations — Process Agents — Statute of Limitations— Judgments — “Full Faith and Credit” — Constitutional Law.

A foreign corporation which had complied with the requirements of Revisal, sec. 1243, in maintaining an agent in this State upon whom process may he served, together with public-service .corporations doing business in this State, may plead the statute of limitations. The test of7 the availability of the plea is whether they were amenable to the process of our State courts.

Walker and Manning, JJ.,- concurring, except as to the retroactive effect of the decision.

Appeal by defendant from Ward, J., at Fall Term, 1909, of TYRRELL.

The facts are sufficiently stated in the opinion of the Court by Associate Justice Brown.

Aydlett & Ehringhaus for plaintiff. ,

W. W. Btarlce, W. 'M. Bond, Brown Shepherd, AycocTc & Winston for defendant.

Brown, J.

The defendant is a foreign corporation owning property and doing business in this State prior to the act complained of and up to this time. • 1

The alleged damage occurred in 1904, and this action was commenced 12 November, 1908. The defendant at all times maintained a process agent in the State, upon whom service *657could be bad, and upon wbom service actually was bad in tbe case now being considered. • Tbe defendant pleaded tbe three years’ statute of limitations. Tbis Court held tbat tbe plea is not available to a nonresident corporation.

Some of tbe earlier utterances of tbis Court upon tbe subject would indicate tbat tbe plea is open to a nonresident corporation upon wbicb service of process can be bad within tbe State and against wbicb a personal judgment may be rendered. Armfield v. Moore, 97 N. C., 34; Williams v. B. and L. Assn., 131 N. C., 267. In tbis last case Mr. Justice Clark, speaking for tbe Court and quoting with approval Armfield v. Moore, says: “The plain intent of the statute is to put nonresidents on tbe same footing as residents, and not to protect them from an action unless they have been for two years exposed to service of summons.”

Since those decisions it has been held by tbis Court tbat tbe plea is never available to a nonresident corporation, although it may have fully complied with our statutes (Revisal, sec. 1243), and appointed and maintained an agent here upon wbom process can be at all times served. Green v. Insurance Co., 139 N. C., 309, and cases cited.

We are now of opinion tbat these last cases are not well decided and tbat tbe better doctrine, more consonant with reason and justice, is tbat expressed in tbe citation from Williams v. B. and L. Assn.

Tbe overwhelming weight of judicial precedent recognizes tbe doctrine as expounded by tbe Supreme Court of Iowa in Wall v. R. R., 69 Ia., 501: “Tbe theory of tbe statute of limitations is tbat it operates to bar all actions except as against persons and corporations upon wbom notice of tbe action cannot be served because of their nonresidence. If such notice be served and a personal judgment obtained which can be enforced in tbe mode provided by law against tbe property of such person or corporation, wherever found, then such person or corporation is not a nonresident as contemplated by tbe statute of limitations.”

To tbe same effect tbe following cases-, and particularly tbe strong cases of Huss v. Central R. R. and Banking Co., 66 Ala., 472, and Sidway v. Land and Live Stock Co., 187 Mo., 673; Lawrence v. Ballou, 50 Cal., 258; Hubbard v. Mortgage Co., 14 Ill. App., 40; St. Paul v. Chicago, etc., R. Co., 45 Minn., 387; Louisville, etc., R. Co. v. Pool, 72 Miss., 487; Colonial, etc., Mortgage Co. v. Northwest Thresher Co. (1905), 103 N. W., 915; Turcott v. Yazoo, etc., R. Co., 101 Tenn., 102; *658 Connecticut Mut. L. Ins. Co. v. Duerson, 28 Gratt., 630; Thompson v. Texas Land, etc., Co., 24 S. W., 856; U. S. Express Co. v. Ware, 87 U. S., 543; Taylor v. Union Pac. R. Co., 123 Fed., 155; McCabe v. Illinois Cent. R. Co., 13 Fed., 827; Winney v. Sandwich Mfg. Co., 50 N. W., 565 (86 Iowa, 608); Abel v. Penn Mut. L. Ins. Co., 18 W. Va., 400; Norris v. Atlas Steamship Co., 37 Fed., 426; Johnson, etc., Dry Goods Co. v. Cornell, 4 Okla., 412.

After adverting to tbe few decisions to tbe contrary, tbe 13 Am. and Eng. Ency., p. 904, says: “Tbe majority of decisions maintain a rule believed to be more consonant witb justice. Tbe rule, briefly stated, is tbat if under tbe laws of tbe domestic State tbe corporation bas placed itself in sucb position tbat it may be served witb process, it may avail itself of tbe statute of limitations wben sued. Ability to obtain service of process is tbe test of tbe running of tbe statute of limitations.”

To tbe same effect is 25 Cyc., 1238, wbicb cites in support of tbe text, among a large number of cases, our own case of Williams v. B. and L. Assn., supra.

In Murfree on Foreign Corporations it is said: “As to tbe second question, wbetber a foreign company,, wben sued, can plead tbe’ bar of tbe statute in defense, it may be said tbat tbe great weight of authority is in favor of tbe conclusion suggested above, tbat tbe true test of tbe running of tbe statute is tbe liability of tbe party, invoking its bar, to tbe service of process during tbe whole of tbe period prescribed; tbat if tbe operations of tbe company within tbe jurisdiction were sucb as to render it liable to suit, then it may plead tbe statute.”

Tbe soundness of this doctrine bas nowhere been more forcibly stated than by Mr. Justice Pleasants in Penn. Co. v. Sloan, 1 Ill. App., 364, a most instructive and well-reasoned case.

Tbe Tennessee Court in Turcott v. R. R., 101 Tenn., 102, bolds on a statute exactly like ours tbat a corporation is a person, within tbe purview of tbe statute, excluding absences from tbe State in computing tbe time for tbe running of tbe statute of limitations, and tbat a foreign corporation doing business in the State upon which service of process may be made may plead tbe statute of limitations.

Tbe Constitution of Alabama contains a provision similar to our statute, requiring all foreign corporations doing business within tbe State to maintain an agent upon whom service of process may be made. Tbat court held tbat sucb corporation could plead tbe statute of limitations. Huss v. R. R., 66 Ala., 475. In rendering tbe opinion Chief Justice BricTcell says: *659“Tbe true test of the running of the statute of limitations is the liability of the party invoking its bar to the service of process during the whole of the period prescribed. If there is the continuous liability, the residence or domicile of the party is immaterial.”

In Express Co. v. Ware, 87 U. S., 543, the Supreme Court of the United States held: “A statute of limitations as against a foreign corporation begins to run from the time such corporation has a person within the State upon whom process to commence a suit may be served.”

The Court of Appeals of New York, it seems, at one time held to the contrary, but what is called the “New York rule” by Mr. Murfree has not been often followed. In speaking of it, the Supreme Court of the United States says through Mr. Justice Bradley: “These decisions upon the construction of the statute are binding upon us, whatever we may thinlc of their soundness on general principles.” Tioga R. R. v. R. R., 87 U. S., 143. In the same case Mr. Justice Miller says: “The liability to suit where process can at all times be served, must in the nature of things be the test of the running of the statute. A different rule applied to an individual because he is a citizen or resident of another State is a violation at once of equal justice and of the rights conferred by the second section of the fourth article of the Federal Constitution, that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.”

The latest decision of the Supreme Court of the United States holds that a foreign corporation owning property and doing business within a State and amenable to its process is a “person,” and as such is protected by the equal protection clause of the United States Constitution. Ry. v. Green, Sup. Court Reporter, Apr. 1, p. 287.

Statutes, like ours, requiring all foreign corporations doing business within the State to maintain an agent therein upon whom process may be served, have been enacted in a great majority of the States, and in nearly all of them, where the question has arisen, the right to plead the statutes of limitation of such State has been accorded. This is the more consonant with elementary principles of justice because a judgment obtained by such service in the courts of the State is entitled to the full faith and credit in another State as it is in the State where rendered. St. Clair v. Cox, 106 U. S., 350; 13 Am. and Eng. Eney., 895.

*660For these reasons, we think that our precedents to the contrary should no longer be authoritative.

We are of opinion that the action is barred.

Error. Petition allowed.

Justices WalKee and Manning concur fully in the above opinion, but think that the judgment should not be retroactive, upon the principle expressed in the concurring opinion of Justice Walker in S. v. Fulton, 149 N. C., 492; S. v. Bell, 136 N. C., 674.