Medical College of Georgia v. Rushing

52 S.E. 333, 124 Ga. 239, 1905 Ga. LEXIS 695

• Court: Supreme Court of Georgia
• Decided: November 13, 1905
• Status: Published

Opinion

EvaNS, J.

(After stating the facts.) 1. The suit was against the Medical College of Georgia, a public eleemosynary corporation and a branch of the University of Georgia. See Acts of 1828, p. 111; Acts of 1829, p. 107; Acts of 1833, p. 130; Pol. Code, §1300. The original service was upon Dr. Ford, who was designated in the return of service as the “President of the Medical College of Georgia,” but who, in the amended entry of service, was designated as “Dean of the Faculty of the Medical College.” The undisputed facts brought to light on the trial of the traverse to the return of service disclosed that Dr. Ford was not the president of the college, but was‘elected a professor or instructor by the board of trustees, and that his eoinstructors in the college, comprising the faculty, had selected him as their dean or executive head. The duty of managing the institution and examining into its affairs devolved upon the board of trustees. Act of Dec. 20, 1828, sec. 4. The trustees, together with the regular professors in the institution, were constituted a board of examination, the duty of which was to decide on Ahe merits of such candidates as may have studied in the institution and complied with all the conditions imposed by the board of trustees as preliminary to the examination, and to confer the degree of bachelor of medicine on such as might be worthy of the same. ■ Ibid. The trustees have authority to fill all vacancies in their body which may occur by death, resignation, or otherwise. Ibid. sec. 10. The fourth article of the by-laws provided that the officers of the board of trustees should be'a president, vice-president, secretary and treasurer, and an executive committee of three to be elected at each annual meeting. It was admitted that the professors in the Medical College were not paid salaries by the trustees, but that the faculty of the college, when elected by the board of trustees, took charge of the management of the college and collected their own tuition fees and met the expenses of the operation.

No argument is needed in support of the proposition that a teacher or instructor in an incorporated academy or college is in no sense an officer o'f the corporation. The co-operation of teachers and trustees as a board of examiners to decide on the merits of candidates for a degree to‘be conferred by the college relates solely to the educational feature of the project, and does not enter into the business management of the institution. In an ordinary private corporation, whose creation is primarily for the personal gain of its stockholders, and which in the conduct of its affairs employs agents to carry on the general business, service of process on the corporation may be effected on any agent who has some sort of control or authority over some department or sphere of the corporation’s business, but not upon a mere employee or servant. Southern Bell Tel. Co. v. Parker, 119 Ga. 721. Where the corporation is eleemosynary in its nature, and not conducted primarily for private gain, and its affairs are administered and superintended by a board of trustees or officers appointed for that purpose, persons employed to effectuate the general objects of the corporation can not be said to be its agents, rather than its employees. A teacher in a college is employed to instruct the students. Many methods may .be adopted to raise money with which to pay their salaries. It may be derived from an endowment, or from ajDpeals to the general public, or from matriculation fees. The mode of providing the teachers’ compensation does not affect the character of their employment. If the trustees of a school contract with teachers that their compensation is to be measured by the tuition fees less the expenses of operation, it can not be contended the relation of the teacher to the school has been altered by this method of compensation. The arrangement, therefore, between the board of trustees and the faculty, whereby the faculty was to defray the expenses of operating the college and receive as compensation the tuition fees, will not serve to render the faculty or its dean either an officer or an agent in such a sense that process against the corporation may be served upon him so as to conclude the corporation.

2. As has been demonstrated, the service upon Dr. Ford as dean of the faculty of the Medical College was not binding on the corporation. The clerk had no authority, without an express order of court, to detach the original process7 which had been served upon Dr. Ford and deliver the petition, with the second process attached thereto, for service upon the president of the college. “There being but one suit, one petition, one defendant, the clerk has no power, without some direct and express order of the court, to issue more than one process. A second process issued by him of his own will, after the appearance term of the case, is void.” Peck v. LaRoche, 86 Ga. 314; Rowland v. Towns, 120 Ga. 74.

3. The demurrer was heard after the court’s refusal to vacate the return of service and dismiss the suit. The defendant- had duly protested that it had not been properly and legally brought before the court, and therefore did not, by interposing its demurrer, waive service. Inasmuch as the court erred in holding that the defendant had been legally served, its subsequent ruling on the demurrer was nugatory and of no effect.

Judgment reversed.

All the Justices concur.