Densel v. Atlanta Mercantile Co.

106 P. 2, 17 Idaho 432, 1909 Ida. LEXIS 118

• Court: Idaho Supreme Court
• Decided: December 20, 1909
• Status: Published

Opinion

SULLIVAN, C. J.

— This action was brought to recover money alleged to bave been loaned. Judgment was entered against tbe defendant by default for $822.65 with interest and costs of suit. Tbe appeal is from tbat default judgment' on the judgment-roll alone.

Appellant’s contention is tbat tbe judgment-roll contains no evidence tbat tbe summons in tbe action was served on tbe defendant corporation. Tbe service of tbe summons was made by one Cy. V. Smith, and bis affidavit of service is as follows:

“Cy. V. Smith, being duly sworn, deposes and says: Tbat be is, and at all times mentioned herein was over tbe age of eighteen years, and not a party to tbe within action; that be received tbe within annexed summons on tbe 13th day of March, 1909, and personally served the same upon tbe Atlanta Mercantile Company, a corporation, by delivering to and with Edward Crabbe, manager of said The Atlanta Mercantile Company, a corporation, in the county of Elmore, on the 13th day of March, 1909, a copy of said summons; and that the copy so delivered to and left with said Edward Crabbe, manager of the Atlanta Mercantile Company, a corporation, said defendant, was attached to a copy of the complaint referred to in said summons.”

Appellant’s contention is that the summons was not served upon the proper officer or agent of said corporation. It appears from the allegations of the complaint that said corporation was organized under the laws of this state and is a domestic corporation. By the provisions of sec. 4144, Rev. Codes, the summons must be served on a domestic corporation by delivering a copy thereof to the president or other head of the corporation, secretary, cashier or managing agent thereof. It is contended by counsel that the affidavit of service of said summons does not show that said summons was served on the “managing agent” of said corporation. It will be observed from said affidavit that it was served on the “Manager of the Atlanta Mercantile Company, a corporation,” and it is contended that service on the “manager” is not service on the “managing agent.” The term “managing agent,” as used in the statute, is a generic term and does not and cannot refer to any particular person or officer like the words “president,” “secretary,” etc., for there is no officer mentioned in the corporation laws nor usually in the by-laws of corporations, as “managing agent.” It is well understood that a corporation can act only through agents, it being an artificial person, and that any person who acts for a corporation to any extent whatever by authority is its agent in whatever he does by its authority. States that have a similar statutory provision for the service of summons upon domestic corporations have held that the proof of service of summons which recites that it was made upon the manager of such corporation was prima facie evidence of service on the corporation, and that such manager was managing agent as contemplated by the statutory provision. (Persons v. Buffalo City Mills, 29 App. Div. 45, 51 N. Y. ; Brun v. Northwestern Realty Co., 52 Misc. Rep. 528, 102 N. Y. Supp. 473; Rudd v. McClean Arms Co., 54 Misc. Rep. 49, 105 N. Y. Supp. 387; Color v. P. B. Co., 146 N. Y. 281, 40 N. E. 779.)

We think under the provisions of said statute that a manager of a corporation is prima facie the managing agent of a corporation, and will be presumed to be suck until the contrary is shown. Service upon the manager of a corporation is prima facie evidence of service upon the managing agent of the corporation.

The judgment is affirmed, with costs in favor of respondent.;

Stewart and Ailshie, JJ., concur.