Gutzeil v. Pennie
Before: Haven
Synopsis
Undertaking on Appeal—Execution by Foreign Surety Corporation — Authority oe Oeeioers. — An undertaking upon appeal, executed by a foreign surety corporation, and signed in behalf of the corporation surety by its second vice-president and its assistant secretary, with the seal of the corporation affixed, will not be declared void, as not being properly signed, where there is nothing to show that such officers were not authorized to sign and deliver it.
Id. — Authority oe Foreign Corporation to Transact Business — Certificate oe Insurance Commissioner— Dismissal of Appeal. —A motion to dismiss an appeal upon the ground that the undertaking was executed by a foreign surety corporation which had not filed with the secretary of state a designation of some person residing in this state upon whom service of process could be made, as required by the act of April 1, 1872 (Stats. 1871-72, p. 826), will be denied, where it appears from the certificate of the insurance commissioner of this state that the surety corporation is duly authorized to transact business in this state.
Id. — Effect of Certificate — Presumption. — There is a presumption that the insurance commissioner properly performed his official duty in issuing the certificate, and such certificate is prima fade evidence that the surety company has complied with section 616 of the Civil Code, though it does not expressly so state.
Id. —Construction of Code — Designation of Agent of Foreign Surety Corporation —Filing in Office of Insurance Commissioner — Statute of Limitations. — Section 1056 of the Code of Civil Procedure, giving the insurance commissioner the same jurisdiction and powers to examine the affairs of a surety corporation as he has in other cases, and requiring him to file similar statements and issue similar certificates, and section 616 of the Political Code, providing that the commissioner is not authorized to issue such a certificate to a foreign insurance company until it has first filed in his office “the name of an agent and his place of residence in this state, on whom summons and other process may be served in all actions or other legal proceedings, ” apply to a foreign surety company; and when such a corporation has filed with the insurance commissioner the designation required by section 616, that is all that is required of it in the fiiatter of naming an agent upon whom process may be served, to entitle it to do business in this state, although the failure to file such designation with the secretary of state might deprive it of the benefit of the statute of limitations, as provided by the second section of the act of April 1, 1872.
De Haven, J. The undertaking on appeal herein was executed by the American Surety Company, a foreign corporation, and the respondent moves to dismiss the appeal, upon the ground that the undertaking is not properly signed, and upon the further ground that the corporation has not filed with the secretary of state a designation of some person residing in this state upon whom service of summons may be made, as required by the act relating to foreign corporations, approved April 1, 1872. (Stats. 1871-72, p. 826.)
1. The undertaking is signed in behalf of the corporation surety by its second vice-president and its assistant secretary, and has affixed to it the seal of the corporation. There is nothing before us to show that these, officers were not authorized to sign and deliver the undertaking, and we cannot, therefore, hold that the undertaking is void because not properly signed.
2. The corporation has never filed with the secretary of state a paper designating the person upon whom service of process can be made for it in this state, as required by the act of the legislature above referred to; but it appears from the certificate of the insurance commissioner for this state that “the American Surety Company of New York City, New York, is duly authorized to transact business in this state, and has been so authorized since December 5, 1884.” It is provided by, section 1056 of the Code of Civil Procedure that in respect to corporations organized for the purpose of becoming surety on bonds or undertakings authorized by law, “ the insurance commissioner shall have the same jurisdiction and powers to examine the affairs of such corporations as he has in other cases; [and] shall require them to file similar' statements, and issue to them a similar certificate.”
The certificate referred to in this section is one that the [600]corporation is authorized to transact business in this state, and the insurance commissioner is not authorized to issue such a certificate to a foreign insurance company until it has first filed in his office “the name of an agent and his place of residence in this state, on whom summons and other process may be served in all actions or other legal proceedings against such corporation or company.” (Pol. Code, sec. 616.) We think that under section 1056 of the Code of Civil Procedure this provision of section 616 of the Political Code also applies to corporations like that executing the undertaking on appeal in this case, and that when such a corporation has filed with the insurance commissioner the designation required by this section of the Political Code, that is all that is required of it in the matter of naming an agent upon whom process in actions against it may be served, to entitle it to transact business in this state, although the failure to file such designation with the secretary of state might deprive it of the benefit of “the statutes of this state limiting the time for the commencement of actions,” as provided by the second section of the above-mentioned act of April 1, 1872.
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