#### WILLIAMSON MENEFEE v. RIVERSIDE AND DAN RIVER COTTON MILLS.

(Filed 20 December, 1913.)

1. Corporations, Foreign — Process—Service of Summons — Director —Interpretation of Statutes.

Service of summons, in an action brought by a citizen and resident of tbis State, against a foreign corporation, which has no property and does not conduct its business here, is valid if made on its director, who is a citizen and resident of this State, under the provisions of Revisal, sec. 440 (1), the restrictions as to doing business and owning property here, etc., not applying to officers of this character.

2. Appeal and Error — Indemnity—Wrong Party — Action Dismissed —Reading Complaint.

In this action against a foreign corporation and its indemnity company wherein a copy of the policy was not attached to the complaint and the reading of the latter did not disclose whether the indemnity company was a' necessary party, and this could not be ascertained until the evidence was in: Held,, the reading of the complaint against the indemnity company in the presence of the jury, and the judge afterwards dismissing the action as to it on defendant’s motion, is not reversible error.

Walker and Brown, JJ., dissenting.

Appeal by defendant from Daniels, J., at May Term, 1912, of Alamance. ,

The facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Clark.

A. L. Brooks and, C. A. Hall for plaintiff.

Morehead & Morehead, Sapp & Williams, and F. P. Hob-good, Jr., for defendant.

*165Clark, 0. J.

This is an action for damages for personal injuries. Tbe defendant entered a special appearance and moved to strike out tbe return of tbe service of tbe summons for tbe reason tbat “tbe defendant is 'a foreign corporation not doing business in North Carolina, and bas not been domesticated and bas no agent upon whom service can be made, and tbe service is invalid and does not amount to due process of law.” Tbe motion was overruled and tbe defendant excepted. Tbe defendant tben answered, and tbe cause was tried upon its merits. From tbe verdict and judgment tbe defendant appealed.

Tbe court found as a fact tbat tbe. defendant is a Virginia corporation and did not bave at tbe commencement of tbis action and bas not now any office or place of business in tbis State, and bas never engaged in business here; tbat it bas never bad a process agent in tbis State nor been domesticated bere; tbat T. B. Fitzgerald) upon whom tbe summons was served, is a director of tbe defendant company and is a resident of tbis State, but be was not at tbe time of tbe service nor at any time prior thereto transacting tbe business of tbe company and held no office therein other than tbat of director, and tbat tbe defendant bas no property in tbis State. Eevisal 1905, sec. 440 (1), provides as to service of summons: “If tbe action be against a corporation, to tbe president or other bead of tbe corporation, secretary, cashier, treasurer, director, managing or local agent thereof; . . . but such service can be made in respect to a foreign corporation only when it bas property witbin tbis State, or tbe cause of action arose therein, or when tbe plaintiff resides in tbe State, or when such service can be made witbin tbe State, personally upon tbe president, treasurer, or secretary thereof.” Tbe construction of tbis statute, which bas been uniformly followed, in Cunningham v. Express Co., 67 N. C., 426, and all cases since, is thus clearly stated by Hoke, J., in Whitehurst v. Kerr, 153 N. C., 76: “Construing a statute- of similar import, it bas been held tbat tbe first clause enumerates tbe persons on whom service of process can be made, to wit, on tbe president or other bead of tbe corporation, secretary, treasurer, director, managing or local agent thereof, and in tbat respect applies to all corporations, both domestic and *166foreign. Then follows the proviso as to who shall be considered local agents for the purpose of the section, and the last clause establishes certain conditions, restrictive in their nature, which are required and necessary to a proper and valid service on foreign corporations. That is, service on the persons designated in the first clause shall only be good as to foreign corporations : (1) when they have property in the State, or (2) when the cause of action arose therein, or (3) when the plaintiff resides in the State. And then a fourth method is established, (4) when service can be made within this State personally on the president, treasurer, or secretary thereof.”

This construction has been held also in McDonald v. McArthur, 154 N. C., 122; Higgs v. Sperry, 139 N. C., 299; Greenleaf v. Bank, 133 N. C., 292; Jester v. Steam Packet Co., 131 N. C., 54; Clinard v. White, 129 N. C., 250; Jones v. Insurance Co., 88 N. C., 499. The plaintiff'was at the time of his injury and before and since a citizen and resident of North Carolina, and relying upon the above decision® brought his action in this State. Should he now begin an action in Virginia he would probably be barred by the statute of limitations.

The Court, in Cunningham v. Express Co., 67 N. C., 426, thus construed this last clause of the section: “The several cases respecting the foreign corporations, it will be observed, are put disjunctively, and we think that the meaning is that in either of the three cases service may be made by delivery of a copy of the summons to one of the officers named in the first clause of the section, among which is the managing agent.” At that time the word “director” was not in the section, but it has been added since. It is only when neither of these three conditions exist that the service is required to be made “upon the president, secretary, or treasurer thereof.”

The defendant relies upon two cases in the U. S. Supreme Court, Goldey v. Morning News, 156 U. S., 518, and Conley v. Mathieson Alkali Works, 190 U. S., 406. In the first case it was held that in an action against a corporation neither incorporated nor doing business within a State and which has no agent or property-therein, service of summons upon its president, temporarily within the jurisdiction, cannot be recognized as *167valid by tbe courts of any other government. This does not affect tbe present case, as tbe director upon whom service was made was resident here. Tbe other ease relied on bolds: “Service in New York of summons upon a director of a foreign corporation who resides in New York is not sufficient to bring tbe corporation into court where, at tbe time of service, tbe corporation was not doing business in tbe State of New York.” This case gives no reason beyond saying: “Tbe principle announced in Goldey v. Morning News covers tbe ease at bar.” This it did not do. This last ease, however, cites with approval tbe following from GoMey v. Morning News: “Whatever effect a constructive service may be allowed in tbe courts of the same government, it cannot be recognized as valid by tbe courts of any other government.” Under our decisions above quoted, and upon which tbe plaintiff relied in bringing bis action, tbe service is sufficient for a valid judgment, at least within our jurisdiction. What opportunity or method tbe plaintiff may have to enforce his judgment is not before us now for consideration.

Tbe other assignment of error is that while tbe Maryland Casualty Company was a party (tbe court having found that it was a necessary party defendant), tbe court allowed the reading of the plaintiff’s amended complaint charging that company with liability to him, and subsequently, on motion of tbe defendant, dismissed tbe action as to said casualty company under tbe ruling in Clark v. Bonsal, 157 N. C., 270. In that case tbe plaintiff bad attached tbe contract of insurance to bis complaint. This case is on all-fours with Wood v. Kincaid, 144 N. C., 393, in which tbe contract was not set out as an exhibit to tbe complaint and it could not be ascertained by tbe court till tbe plaintiff’s evidence was in that it bad no cause of action against tbe Maryland Casualty Company. Then tbe action was dismissed as to tbe said casualty company upon motion of tbe defendant. It did not appear upon tbe face of tbe complaint that tbe casualty company was not a necessary party, and this could not be ascertained until tbe evidence of tbe plaintiff was in. Besides, it does not appear bow reading to tbe court allegations in tbe complaint against another party, as to whom tbe ° nonsuit was afterwards taken, can have prejudiced this defend*168ant. Even if read in tbe bearing of tbe jury, tbe complaint was read to tbe court only, and if tbe jury paid any attention to it at all, they knew tbat it was not evidence, but merely tbe allegations of tbe plaintiff.

No error.

Walker, J.,

dissenting: Tbis is an action for damages for personal injuries. Tbe defendant entered a special appearance and moved to strike out tbe return of tbe service of tbe summons and dismiss tbe action, for tbe reason tbat “tbe defendant is a foreign corporation, not doing business in North Carolina and not domesticated, and bas no agent upon wbom service can be made, and tbe service is invalid and does not amount to due process of law.” Tbe motion was overruled, and tbe defendant excepted. Tbe defendant tben answered, and tbe cause was tried upon its merits. From tbe verdict and judgment tbe defendant appealed.

Tbe court found as a fact tbat “tbe defendant is a Yirginia corporation and did not bave at tbe commencement of tbis action, and bas not now, any office or place of business in tbis State, and bas never engaged in business bere; tbat it bas never bad a process agent in tbis State nor been domesticated bere; tbat T. B. Fitzgerald, upon wbom tbe summons was served, is a director of tbe defendant company and is a resident of tbis State, but be was not at tbe time of tbe service nor at any time prior thereto transacting tbe business of tbe company and held no office therein other than tbat of director, and tbat tbe defendant bas no property in tbis State.”

For tbe validity of such service tbe plaintiff relies upon Cunningham v. Express Co., 67 N. C., 426, and several cases decided since, which, he says, sustain tbat contention. But in Conley v. Mathieson Alkali Works, 190 U. S., it was held tbat: “Service in New York of a summons upon a director of a foreign corporation who resides in New York is not sufficient to bring tbe corporation into court where, at tbe time of service, tbe corporation was not doing business in tbe State of New York.”

"We may add to tbe case just cited, which seems to be a conclusive authority, tbe following, which are just as much in *169point: Mutual Life Association, v. McDonough, 204 U. S., 8 (51 L. Ed., 345); Kendall v. Automatic Loom Co., 198 U. S., 477 (49 L. Ed., 1133); Goldey v. Morning News (Gray, J.), 156 U. S., 518 (39 L. Ed., 517); Conley v. Alkali Works, 190 U. S., 406 (47 L. Ed., 1113); Barrow St. Co. v. Kane, 170 U. S., 100 (42 L. Ed., 964) Ins. Co. v. Sprattley (Peckham, J.), 172 U. S., 602 (43 L. Ed., 569); St. Clair v. Cox, 106 U. S., 350 (27 L. Ed., 222); Construction Co. v. Fitzgerald, 137 U. S., 98 (34 L. Ed., 608); Steamship Co. v. Kane, 170 U. S., 100 (42 L. Ed., 964); Eldred v. Am. Pal. Car Co., 103 Fed. Rep., 209.

In deference to these decisions of the highest court, we should hold and adjudge that the action be dismissed, as the cases are, at least substantially, alike in their facts.

Except in this State, the cases where it has been held that the service upon an officer of a nonresident corporation in a State other than that of its residence is sufficient, it appeared that he was transacting business of the corporation or there was some other fact or circumstance which implied authority to receive service. It would seem to be at least fair and just that the officer upon whom service is made should be under some legal duty to make known the fact of service to the corporation, and not merely under a moral obligation to do so, or by charging him with the transaction of business in the State of service the corporation should thereby have made him, at least impliedly, its representative in that State, under its laws, whose protection it has enjoyed, and thereby subjected itself to binding service upon him.

BbowN, J., concurs in this dissent.