VALIDITY OF SERVICE OF SUMMONS ON A VICE-PRESIDENT.

Court of Appeals for Lucas County.

#### Charles D. Towne v. National Machinery Co.*

Decided, December 11, 1917.

*Corporations*— Quashing *Summons Not a Final Ord&>'-*— Second *Vice-President Becomes Ipso Facto First Vice-President, When*— Service *on Vice-President Valid,, When*— Service *on Chief Officer in any County Effective in a Personal Injury Case.*

1. An order toy a court of common pleas quashing on motion a service of summons, is not a final order or judgment to which error can be prosecuted.

2. On the death of the first vice-president of a corporation the second vice-president becomes *ipso facto*first vice-president and may take the place and perform the duties of the president in his absence.

3. Where the president of an Ohio corporation is a non-resident of ¡the state and absent therefrom, service of summons on the corporation may be made, by virtue of the provisions of Sections 11272 and 11288, General Code, on the vice-president, such officer being a chief officer within the meaning of said sections.

4. An action for personal injuries may be brought against an Ohio corporation in any county of the state in which service of summons can be made on a chief officer of the corporation.

*Kohn, Northup & McMcihon,*for plaintiff in error.

*J. C. Boyer*and *McCauley é Weller,*contra.

*

Motion to require the Court of Appeals to certify its record in this ease overruled by the Supreme Court February 5, 1918.

Richards, J.

The defendant is an Ohio corporation having its situs and manufacturing plant and principal office in the city of Tiffin, Seneca county, Ohio. The plaintiff brought an action against the defendant in the court of common pleas of Lucas county to recover damages for personal injuries claimed to have been suffered by him while employed in its plant in the city of Tiffin. It is stated in the brief of counsel for the defendant and is not *376disputed that the plaintiff was at the time of the commencement of his action a resident of the county of Seneca.

Upon the filing of the petition summons was issued to the sheriff of Lucas county, the return of the sheriff showing service by delivering personally a copy of the summons, with endorsements thereon, to Augusta Eohn, the vice-president and one of the chief officers of the National Machinery Co., the sheriff certifying that no other chief officer of said company could be found in Lucas county.

The defendant appearing for the purposes of the motion only, filed a motion in the court of common pleas to set aside the return of service of summons for two reasons: (1) Because Augusta Eohn upon whom service of summons was made as vice-president of the defendant and one of the chief officers of the defendant was not and is not a vice-president or chief officer of the company; and, (2) because a vice-president of a corporation is not a chief officer of such corporation. This motion was heard on evidence taken by the respective parties, and the court of common pleas, after hearing the evidence and the arguments of counsel, granted the motion and quashed the service of summons, to which decision error is prosecuted to this court.

On an examination of the record this court became convinced that the judgment quashing the service of summons was not a final order or judgment, basing its conclusion largely on the reasoning of the court in the ease of *Tatum*v. *Geist,*40 Wash., 575, and the authorities therein cited. Thereupon the court of common pleas on application duly made entered a *nunc pro tunc*judgment dismissing the plaintiff’s petition as of the date of the quashing of the service of summons and adjudging that plaintiff pay the costs, and the record in this court has been corrected in accordance with such *nunc pro tunc*judgment.

The record now showing a final judgment, the question raised as to the sufficiency of the service of summons on Augusta Eohn as vice-president becomes a very important question of practice, the solution of which is to be reached by a construction, Sections 11272 and'11288, General Code, in connection with the evidence contained in the record.

*377It appears from this evidence that the officers of the National Machinery Co. were M. Frost, president; II. M. Reynolds, vice-president; Augusta Rohn, second vice-president; "William L. ITertzer, treasurer, and Earl R. Frost, secretary and manager, and that H. M. Reynolds who had been chosen as vice-president died before the filing of the petition in this case. Augusta Rohn was elected second vice-president on July 11,1911, and had been regularly re-elected as such vice-president each year up to and including January 16, 1917. It further appears that the president of the company, M. Frost, is and has been for many years a resident of Somerville, New Jersey, and. that Mr. Reynolds, the vice-president, was at the time of his death and had been for a number of years theretofore a resident of the state of New York. The president of the company, M. Frost, was at the time of the bringing of this action and the service- of the summons absent from the state of Ohio. Augusta Rohn was one of the largest stockholders of the company and had served for many years as a member of the board of directors and as a member of the executive committee or board of managers, and states in her affidavit which was introduced in evidence on the trial of the ease that she had never discharged any duties for said company as second vice-president, nor had she attempted so to do. She had come to the city of Toledo on July 11, 1917, upon some private business of her own and not upon any business connected with- that of the defendant company. While in the city on that day she was served with summons by the sheriff as already stated.

The code of regulations adopted by the company provides that the officers of the company shall consist of a president, a vice-president, a secretary and a treasurer, to be elected by the board of directors, and Section 33 of the code of regulations authorizes the board to elect or appoint such other officers as it may deem proper. Pursuant to the authorization contained in this section the board had for a number of years prior to the bringing of this action regularly elected Augusta Rohn as second vice-president. Section 43 of the code of regulations provides that in the absence or inability of the president to act the vice-president shall perform all the duties and may exercise any of the powers of the president subject to the control of the board.

*378A solution of the problem presented by this record as to the sufficiency of the service depends upon the answer to two questions :

First. Was Augusta Rohn at the time of the service vice-president of the company? and,

Second. If so, was the service on her as such vice-president a valid service within the provisions of the Ohio statute’s cited?

By virtue of the authority vested in the board of directors to elect or appoint such other officers as it deemed proper and their exercise of such authority, Augusta Rohn became legally second vice-president of the defendant company and filled that office for a number of years up to and including the time summons was served upon her in this action. On the death of the first vice president, Mr. Reynolds, which occurred in May, 1917, Mrs. Rohn became *ipso facto*first vice-president of the company and was such at the time of the service of summons upon her. It is said in argument that her election as second vice-president was merely by way of compliment and without the expectation of conferring any rights or duties on her. The record, however, does not show such to be the fact. We must therefore conclude that at the time of the service of summons she was in fact and in law the first vice-president of the National Machinery Co.

The first section cited, to-wit, Section 11272, General Code, fixes the venue in actions brought against corporations and authorizes the bringing of such actions in the county in which such corporation is situated or has its principal office or place of business, “or in any county in which a summons may be served upon the president, chairman or president of the board of directors or trustees or other chief officer.” The other section cited, to-wit, Section 11288, General Code, authorizes the service of summons “upon the president, mayor, chairman or president of the board of directors or trustees or other chief officer. ’ *’*Within the language of these sections if Augusta Rohn, by reason of the permanent non-residence of the president and his absence from the state of Ohio, became the chief officer of the defendant company then service upon her was authorized by the statute.

We are well aware of the rule that the statutory method of service of summons on a corporation is mandatory and must be *379strictly followed, and it naturally follows that where the statute-designates a particular officer or person or class of persons on whom process shall be served, this requirement must be complied with in order to obtain jurisdiction. This rule is announced in various text books and in many adjudicated cases and admits of no uncertainty.

The general subject of service on the vice-president of a corporation is discussed in 3 Thompson, Corporations (2d Ed.), S'ection 3062, where the author uses the following language:

> “The vice-president, as formerly shown, in the absence of the president, takes the .place and performs the duties of the president. It may be asserted as the rule, and is believed to be sound law, that where statutes authorize service of process on the president of a corporation, then in his absence or where he can not be found, service on the vice-president is sufficient and binding on the corporation. This is not a violation of the rule already stated, that one officer can not be substituted where the law ñames another. But in such case the law itself substitutes the vice-president for the president, and no such rule applies to any other officer.”

We note particularly the importance of the latter portion of the quotation that “no such rule applies to any other officer.” This exception undoubtedly occurs by reason of the fact that the vice-president has no functions to perform except in the ease of the absence, disability or death of the president, and that when the absence, disability or death of the president arises then his duties devolve upon the vice-president who thereby becomes for the time being chief officer of the company, and hence it results that this is not a substitution by the parties of one officer for another, but, as is said by the eminent author already quoted, the substitution is made by the law itself. Hence it is said in 2 Thompson, Corporations (2d Ed.), Section 1495, that in the absence of the president the vice-president is the chief officer of the corporation.

The identical question we are considering has been determined by several respectable authorities, among which is the case of *Comet Consolidated Mining Co.*v. *Frost,*15 Colo., 310, under a statute which provided that service upon corporations’ should *380be made by delivering a copy of the summons to the president- or other head of the corporation, or to the secretary, cashier, treasurer or general agent thereof. While the phraseology of the statute is not literally the same as the Ohio statute, yet in substance and effect we construe it to be the same. Under that statute it was held that a service of summons upon the vice-president of the corporation was sufficient.

The question was also determined in the ease of *Pond*v. *National Mortgage & Deb. Co.,*6 Kans. App., 718. The Kansas statute under which this decision was reached appears to provide that service may be made upon the president, mayor, chairman of the board of directors, trustee, or other chief officer. In the course of the opinion the court say that, in the absence of the president of a corporation, it is the duty of the vice-president to act as president and at such times he is the chief officer of the corporation.

A like conclusion was reached by the federal court in *Ball*v. Warrington, 87 Fed., 695, where the same Kansas statute was under consideration.

The Supreme Court ,of Missouri has sustained the validity of service on a vice-president under a statute substantially identical with ours. See *Youree*v. *Home Town Mut. Ins. Co.,*180 Mo., 153.

Indeed, our attention has not been called to any authority holding that a service npon a vice-president is insufficient in cases where the president is absent, disabled or dead, where the 'statute authorizes service upon the president or other chief officer. Many authorities hold that where such service is authorized it is not allowable to make service upon a secretary or treasurer because that would be substituting one officer for another, and such substitution can not be made by the parties, the only substitution allowed being that of vice-president for the president where the duties of the president devolve upon the vice-president in case of the absence, disability or death of the president. Under such circumstances the vice-president becomes the chief officer of the corporation for the time being and is within the language of the statute.and service made on him is therefore valid.

*381Counsel for the defendant cite *Karns*v. *State Bank & Trust Co.,*31 Nev., 170, a decision of the Supreme Court of Nevada, where the statute authorizes a service on the “president or other head of the corporation, secretary, cashier or managing agent thereof.” The court in that case had under consideration the sufficiency of a service on an assistant cashier of a bank, and it was, of course, held that such service was invalid. In the course of the opinion the court say:

> “There is good reason for holding that, in the absence of the president, he becomes superseded by the vice-president, who, in effect, becomes the president or head of the corporation, endowed with the functions of the president and subject to service as ‘the president or other head of the corporation.’ ”

Counsel for the defendant also rely on the case of *Oklahoma Fire Ins. Co.*v. *Barter Asphalt Pav. Co.,*34 Okla., 149, a decision of the Supreme Court of Oklahoma. In that state the service of a summons on a corporation may be had upon the president, mayor, chairman of the board of directors or trustees or other chief officer, and the court had only to determine as to the sufficiency of a service upon a director of the corporation other than the chairman of the board and, of course, reached the conclusion that such service was not authorized. To sustain the validity of service under such circumstances would be a substitution by the court of one officer for another.

A majority of the court are of opinion that under the evidence introduced in this case and by virtue of the authority of the sections of the General Code cited, service of summons on Augusta Rohn as vice-president of the defendant company was authorized and was a sufficient service.

The judgment will therefore be reversed and the case remanded to the court of 'common pleas for further proceedings.

Chittenden, J., concurs; Kinkade, J., dissents.