Federal MacHine & Welder Co. v. Superior Court

McCOY, J. pro tem.

*

Petitioner seeks a writ of mandate

[929]

pursuant to section 416.3, Code of Civil Procedure, requiring the Superior Court for Los Angeles County to enter its order quashing service of summons upon petitioner, a foreign corporation, in an action brought by plaintiff, the real party in interest in this proceeding. The action was brought against petitioner and other defendants (not here involved) to recover damages for personal injuries suffered by plaintiff while operating a punch press in California.

Plaintiff did not obtain an order for service of the summons on the Secretary of State. Instead, his attorney forwarded a copy of the summons and complaint to the sheriff of the county in Ohio, wherein the City of Youngstown, Ohio, is situated, and the sheriff made personal service upon one, F. H. Dreher, who pursuant to Ohio law was named an agent for service of process on petitioner in Ohio. Petitioner appeared specially in the action and moved to quash service of summons upon the ground that the court did not acquire jurisdiction over petitioner by said service. The motion was denied.

In a declaration of petitioner’s attorney filed in support of the motion to quash it is alleged: ‘ ‘ The said defendant, Federal Machine and Welder Company, is an Ohio corporation which had its principal offices in Youngstown, Ohio. Neither at the time the cause of action alleged in the Complaint arose nor at the time of the purported service of Summons nor at any time subsequent thereto has there been any officer of said corporation in the State of California for purposes of the business of said corporation and said corporation has no general manager or other agent within the State of California and has no designated agent for service of process therein.” It is further alleged that: “On August 30, 1967, I had a telephone conversation with Patrick F. Sheehy, Esq., of counsel for plaintiff herein in which said attorney informed me that he had ascertained from the Secretary of State of the State of California that said corporation had no designated agent for service of process in the State of California and that thereafter the Secretary of State of the State of Ohio had informed him that the said F. H. Dreher was the designated agent for service of process in the State of Ohio for said corporation. Said attorney further informed me that he had forwarded process to the appropriate Sheriff’s office and directed that service be made on the said F. H. Dreher in Youngstown, Ohio.”