Winston v. Idaho Hardwood Co.

SHAW, J.

Defendant appeals from a judgment by default entered against it.

The verified complaint alleged that at all the times mentioned defendant was a corporation created under the laws of Idaho; that plaintiff was employed by defendant as general manager of its property, consisting of certain real estate therein described, situate in Kern County California; that plaintiff on the nineteenth day of February, 1911, entered upon his duties as such general manager and continued therein until October 1, 1912. Followed by allegations as to the salary agreed to be paid plaintiff by defendant, a demand therefor and nonpayment. While there is no direct allegation that defendant was doing business in this state, respondent contends that such inference necessarily follows from the allegation that defendant employed plaintiff as general manager of its real estate. It is not alleged that defendant failed to comply with the provisions of sections 408 and 409 of the Civil Code, whereby every corporation organized under the laws of another state and doing business in this state is required to file in the office of the secretary of state of the state of California a certified copy of its articles of incorporation, or that defendant had failed to designate a person upon whom service of process issued against it could be served. The record discloses that the sheriff of Sacramento County, to whom the summons was delivered for service, certified that he “personally served the same on the 23d day of December, 1912, on the defendant, the Idaho Hardwood Company, a foreign corporation doing business in the state of California, by delivering to and leaving with Frank H. Corey, chief

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deputy for Frank C. Jordan, the secretary of the state of California, in the said county of Sacramento, a true copy of said summons, together with a copy of the complaint in said action referred to in said summons.” He further certified that defendant had not designated any person residing in the state of California upon whom process could be served. At the expiration of thirty days from the date of this service, defendant’s default was entered, followed on the same day by a judgment entered by the clerk of the court in accordance with the prayer of the complaint. The contention of respondent is that his complaint shows that defendant was a foreign corporation doing business in this state, and that the sheriff’s return of service of summons shows that defendant had not designated any person in the state upon whom service of process issued against it could be made, and hence the service of the summons upon the secretary of state was sufficient, under sections 405 and 406 of the Civil Code, to give the court jurisdiction of defendant. Assuming that defendant neglected to comply with the provisions of sections 408 and 409, requiring it to file a certified copy of its articles of incorporation, the only penalty fixed therefor is found in section 410 of the Civil Code, under which it is subjected to a fine of not less than five hundred dollars, in addition to which penalty it is deprived of the right to