SERVICE OF SUMMONS ON FOREIGN CORPORATIONS.

Judge Richards of the Sixth Judicial District sitting in place of Judge Shohl by Designation.

Court of Appeals for Hamilton County.

#### Hurd v. John B. Ransom & Co.

Decided, June 28, 1920.

*Summons*— Service *of On a Foreign Corporation having no Agent in the State*— Must *he Made upon the Managing Agent*— Not *Good where Made on the President while Temporarily in the State*— Error *Lies to Sustaining of Motion to Quash Service, When.*

1. Service of summons upon a foreign corporation whose place of business is outside of the state, having no agents in Ohio and transacting its business in the different states by mail, is controlled exclusively by Section 11290, General Code.

2. Service upon such foreign corporation to be good must be made upon the managing agent, and when the sheriff's return shows service only upon the president, it not appearing what the duties of the president are, nor that he is managing agent, it is incumbent upon the plaintiff to prove that such president is the managing agent.

3. Where the president of such *foreign*corporation is in Ohio for the sole purpose of attending a national convention, his presence is merely temporary and incidental, and he is not .doing business within the meaning of the law to afford a sufficient basis for service of summons.

4. Error proceedings may be prosecuted from a judgment sustaining a motion to quash service of summons, on the ground that a foreign corporation is not amenable to suit in Ohio. *Towne*v. *National Machinery Co.,*29 O.C.A., 375, distinguished.

*Bettinger, Schmitt (& Kreis,*for plaintiff in error.

*Frank F.*Dinsmore, for defendant in error.

Hamilton, J.

Heard on error.,

Error is predicated here upon the granting, of the motion of the defendant below to quash and set aside, the service of *478summons upon the defendant. Defendant appeared for the purposes of the motion only.

The defendant below was a Tennessee corporation, whose place of business was in Nashville. It had no agents residing in. Ohio. It transacted its business in the different states in the Union by mail. It was engaged in the lumber business. All orders taken were subject to the approval of the home office in Nashville, Tennessee.

The suit instituted below was upon an alleged breach of contract arising out of an order taken for lumber by the Chicago agent of the defendant company while casually passing through Cincinnati, the place of business of the plaintiff.

At the time of the attempted service of summons in the action, Arthur B. Ransom, the president of the defendant company, was in Cincinnati in attendance upon the National Hardwood Association meeting, which was the annual meeting of the Hardwood Association for a general review of the hardwood business. These facts appear in the deposition of Arthur B. Ransom, attached to the record. The return of the sheriff is as follows:

“Cincinnati, February 6, 1918.

“Served the within named defendant, John B. Ransom & Company, a corporation existing and doing business in Tennessee, by delivering a true copy of this writ, with all endorse-, ments thereon, personally to Arthur B. Ransom, president thereof.

1 ‘ George F. Schott, Sheriff of

“Hamilton County, Ohio,

“By Fred Sperber, Deputy.”

Was this service good?

The court below granted the motion to quash the service on the ground that the defendant company was not doing business in the State of Ohio in a way that would bring it within the jurisdiction of the court, but held that if the defendant was amenable to suit, the president was the proper person to serve, under Section 11288, G. C., and, in support of that position, cited the ease of *Lively*v. *Picton,*218 Fed., 401, 406. While we agree with the court below that under the facts as disclosed *479by the deposition of Arthur B. Ransom, the president, that the president’s presence in Ohio was merely temporary and incidental, and did not constitute doing business, within the meaning of the law, to afford a sufficient basis for service of summons here, we do not rest our decision wholly on that ground. We think service of summons on a foreign corporation, such as the defendant here, is controlled exclusively by Section 11290, G. C., which provides:

> "When the defendánt is a. foreign .corporation, having a managing agent in this state, the service may be upon such agent.”

Service of summons under Section 11288, G. C., is limited to service upon domestic corporations and such foreign corporations as are therein described. *Baltimore & O. Ry.*v. *Wheeling, P. & C. Transportation Co.,*32 Ohio St., 116, 135. The defendant corporation is not one of the foreign corporations therein described. While in the case of *Lively*v. *Picton, supra,*relied upon by the trial judge to bring the case within the purview of Section 11288, G. C. is found an observation by the federal court that Section 11288 provided a permissive mode of service upon foreign corporations, that court did not rest, its decision upon that point, as in that ease the defendant company entered its appearance by demurrer to' the plaintiff’s petition, and, further, it appeared that the by-laws of the company expressly gave the president general management of the business of the company.

In the ease of *Beach*v. *Kerr Turbine Co.,*243 Fed., 706, the court held that service of process in Ohio on a foreign corporation is controlled by Section 11290, G. C., of Ohio, and cites with approval the case of *Goode*v. *Druggists’ Association,*16 Dec., 586, wherein the trial court held that the only mode of obtaining service of summons on a foreign corporation was provided in Section 11290. The ease of *McCullough*v. *United Grocers’ Corp.,*247 Fed., 880, was to the same effect.

Under this view of the law service to be good upon a foreign corporation, such as the one in this case, must be made upon *480the managing agent. The sheriff’s return shows only service upon the president. -To show proper service, in the return of the sheriff, it must appear that the service was made on the managing agent. It can not be said that the president is *ipso facto*the managing agent of a corporation. It does not appear what the duties of the president were. No by-laws or record of any kind are in the record to show what the duties of the president were as appeared in the case of *Lively*v. *Picton, supra.*While the return of the sheriff might have been corrected to show that the president was the managing agent, it not so appearing in the return, it was incumbent upon the plaintiff to prove the fact that he was such managing agent. That the return must so show is supported by the eases of *State*v. *King Bridge Co.,*7 C. C. (N. S.), 557; *Nieswonger*v. *Aetna Ins. Co.,*Dayton Term Rep., 154, and *Fleckmyer Wheel Co.*v. *Commercial Wheel Co.,*7 N. P., 613.

The point is made by the defendant in error that the judgment sustaining the motion 'to quash the service is not a final order from which error could be prosecuted. Since the point is sustained that the defendant was not amenable to suit in Ohio, under the facts in the case, the judgment was final, and the proceeding in error was proper. *State*v. *Pennsylvania Steel Co.,*123 Md., 212 (91 Atl., 136); *Tatum*v. *Geist,*40 Wash., 575 (82 Pac., 902), and *Cowden*v. *Stevenson,*Wright, 116.

The case at bar is distinguishable from *Towne*v. *National Machinery Co.,*29 O. C. A., 375, for that case involved an Ohio corporation having its situs and principal place of business within the state.

The judgment will be affirmed.

Cushing and Richards) JJ., concur.