Olender v. Crystalline Mining Co.

McFARLAND, J.

This is an action to recover of defendant $433.01, with interest, money laid out and expended by plaintiff for defendant at the latter’s request. Default of defendant was entered, and judgment rendered according to the prayer of the complaint. Defendant appeals from the judgment and also from orders denying its motion to quash the service of summons, and denying its motion to vacate the judgment by default based on such service.

Appellant is a foreign corporation created and existing under the laws of Great Britain and doing business in California. By an act of the legislature of this state, approved March 17, 1899, (Stats. 1899, p. 111,) it is enacted that a foreign corporation doing business in this state must designate, by a writing filed with the secretary of state, some person as its agent upon whom process may be served, and that if it fail to do so, service of summons in civil actions against it may be served on the secretary of state. In the case at bar the defendant did not designate such agent, and service of summons was made on the secretary of state. The main contention made by appellant is that said act of the legislature is unconstitutional and void; but this contention is not maintainable. The positions taken are that the state cannot arbitrarily appoint as an agent for appellant one between whom and appellant there is no actual relation of principal and agent, that the law does not require the secretary of state to communicate to a defendant any information of the service of summons, that if the service be held sufficient, appellant would have no notice of the proceeding and no opportunity to be heard, and' therefore a judgment on such service would deprive appellant of his property without due process of law. These positions are not tenable. The cases of

Keystone Driller

[484]

Co.

v.

Superior Court,

138 Cal. 738, [72 Pac. 398], and

Willey

v.

Benedict Co.,

145 Cal. 270, [79 Pac. 270], cited by respondent, are not direct decisions on the point, although they seem to assume the constitutionality of the act in question; but, upon principle, we think that the respondent’s contention is clearly maintainable. When a foreign corporation undertakes to do business in this state it is bound to know the existing law as to its right to do such business; and in the case at bar the appellant knew that as a condition of its doing business here, it must, under the law, appoint an agent upon whom process could be served, and that if it refused to appoint such agent, service could be made on the secretary of state. There is nothing unjust or unconstitutional in such a law. The appellant would have had full notice of the commencement of the action, and an opportunity to be heard, if it had put itself in the position of having such notice by simply complying with the reasonable requirement of the law that it appoint an agent to receive such notice; and by its failure to do so indicated its willingness to have such notice given to the secretary of state. It is, therefore, in no position to invoke the constitutional ^doctrines that,, a .defendant must have notice of an action against him and an opportunity to be heard therein.