Lawrence v. Ballou

50 Cal. 258, 1875 Cal. LEXIS 139

• Court: California Supreme Court
• Decided: July 1, 1875
• Docket: No. 3196
• Status: Published

Opinion

By the Court, McKinstry, J.:

These are cross-appeals in the same cause, and were argued together.

The Hazard Powder Company did not become a party to this action until the 19th day of April, 1871, when its answer was in effect filed. The plaintiff having moved to make the company a party defendant on the 19th of April, and having stipulated on the 13th of May that the answer should be filed on that day as of the 19th of April, cannot be heard to say that the company was not a party and present in court from the last-named day.

If the Hazard Powder Company be considered as appearing on the 19th of April, the Statute of Limitations had run in its favor, since the District Court found that the company ousted and ejected the plaintiff September 13, 1865, and from thence had held the adverse possession. The Court also found that E. H. Parker had been the managing agent of the company (a foreign corporation), in this State from the first day of January, 1853. We are of opinion that when a foreign corporation has a managing agent in this State (exercising openly his authority as such, and without fraudulent concealment), the corporation is within the State within the intent of the Statute of Limitations. It may be sued in the courts of this State, and service of process made personally upon the managing agent, and if the latter exercised his functions here continuously for the period fixed by the Statute of Limitations, the corporation may claim the benefit of the statute.

. In the present case the corporation was made a party defendant, and the complaint alleges an entry and ouster by the company, and an adverse holding of the premises since the 2d of May, 1865, and the court below found as a fact that the ouster occurred more than five years before the company was made a party defendant. It cannot be claimed that the defendant was present and in the actual occupation for the purpose of being sued, but that the court must, at the same time, ignore its presence and occupation when they are relied upon as constituting an adverse possession and defense.

If, however, it were correct to say that the Hazard Powder Company was not a party defendant until the 14th day of May (which was after the trial was finished), it is clear that the judgment against the company should be reversed.

The court found that the defendant Parker had no other occupation of the premises than as agent of the Hazard Powder Company, and the latter having established a legal defense to the action, it necessarily results that the possession of the agent cannot be disturbed.

Judgment and order denying new trial reversed, and cause remanded for a new trial.

Hr. Justice Rhodes and Mr. Justice Crockett, being disqualified, took no part in the decision.