stating that, “[t]o hear and determine an action[,] the court must have jurisdiction of the parties”
How later courts described this case
- stating that, “[t]o hear and determine an action[,] the court must have jurisdiction of the parties”
- “To hear and determine an action[,] the court must have jurisdiction of the parties.”
Written by the judges who cited it.
The opinion
Kessel, Judge,
dissenting:
Respectfully, I dissent from the decision of the Court in this case. I disagree with the first point of the syllabus. I would hold that the service of the original process was valid in this case, although it was made by a full-time employee of the respondent corporation, Kanawha Valley Oil Company, referred to in the majority opinion as Oil Company. Subsection c of Rule 4, R.C.P., reads: “Service of all process shall be made with due diligence by the sheriff or by any credible person who is not a party, except that an attorney for a party shall not serve original process.” This rule is plain, clear and unambiguous. It needs no interpretation.
The Court, by a reverse process of reasoning, has determined that since R.C.P. 4(d) (5) provides that a domestic private corporation can be served with process by delivering a copy “thereof to any agent of the corporation including, in the case of a railroad company, a depot or station agent in the actual employment of the company” when no officer, director or trustee of such corporation can be found, then, by the same token or reason, a full-time employee of such corporation could not, during his regular employment hours, serve an original process for his employer, who is a party to an action, because at such time he would be acting for his corporate employer and as his agent.
The answer to this is that R.C.P. 4(d) (5) permits service of a summons on an agent of a domestic private *190 corporation under certain conditions, for obvious reasons, and that R.C.P. 4(c) does not prohibit an agent from serving the process. There are only two exceptions to R.C.P. 4(c): (1) A party to an action cannot serve a process; and (2) an attorney for a party cannot serve an original process.' The Rule (R.C.P. 4 (c)) does not state that an agent cannot serve a process for his principal. I do not believe the majority is warranted in coming to this conclusion and holding that the full-time employee of the Oil Company is prohibited from serving the process in this proceeding under the facts and circumstances of this case.
The first point of the syllabus of the case of Plano Mfg. Co. v. Murphy, 16 S.D. 380 ; 92 N.W. 1072 , cited by the majority for the proposition that an agent of a party of an action can serve a process for his principal and that he is not a party of the action, holds: “The agent of plaintiff in an action is not a ‘party’ to the action, within Comp. Laws, §4899, authorizing the service of summons by the sheriff or any other person not a party to the action, and a service by such, agent is therefore valid.” This, I believe, is good law and should be followed in this state.
In the case of Froling v. Farrar, 77 N.D. 639 , 44 N.W.2d 763 , also mentioned in the majority opinion as holding to the contrary, the court stated “that service of summons on defendant by plaintiff’s husband, who conducted a collection agency jointly with plaintiff and would share any benefits from the suit was at least voidable, so as to render the judgment subject to vacation on timely motion, since the husband was a real party in interest.” The court in the Froling case reasoned that since the husband of the plaintiff, the process server, had an interest in the subject matter of the action, he was a real party in interest. There was no determination here that an agent could not serve the process of his principal if he had no interest in the subject matter of the suit.
If we would follow the reasoning of the majority to its logical conclusion, then we would have to hold that no *191 agent could serve a process for his principal while in his full-time employ. This would exclude, for example, a full-time employee of a law firm whose part-time duties might be the serving of processes for the firm.
Then to take the next and final step would be to hold that no agent, full-time or part-time, could serve a process for his employer. This, in its ultimate reasoning, would, in effect, exclude all process servers except perhaps the sheriff; as every process server is the agent of the person for whom he serves the process.
I would, therefore, hold that the service of the process in this case was valid and I would discharge the writ.
I am authorized to say that Judge Berry joins in this dissent.