Keener v. Eagle Lake Land & Irrigation Co.

California Supreme Court Dec 31, 1895 No. Sac. No. 13Published

Before: Harrison

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Holding. The court held that service of process upon a corporation's managing agent is sufficient to establish jurisdiction, but reversed the portion of the judgment granting a statutory lien and counsel fees because the plaintiff failed to show his employment fell within the specific terms of the 1891 wage lien statute.

Issues

Whether service of process upon a corporation's managing agent is sufficient to establish jurisdiction over the corporation.
Whether the plaintiff is entitled to a statutory lien under the Act of 1891 for wages not proven to be payable weekly or monthly.
Whether the award of counsel fees was authorized under the circumstances.

Disposition. Affirmed in part and reversed in part.

Quotations verified verbatim against the opinion

“The affidavit of service upon one who is named the managing agent of the corporation is prima facie proof that he was such officer, and the statute authorizes the service to be made upon him for the corporation.”

“As the remedy sought to be enforced herein exists only by virtue of the statute, it was incumbent upon the plaintiff to bring himself within the terms of the statute, and to show that the wages earned by him were “due weekly or monthly.””

Synopsis

Summons—Proof of Service upon Corporation—Sufficiency of Affidavit.—In an action against a corporation, an affidavit of service of summons stating that it was personally served upon a designated person, described as the managing agent of the corporation, by delivering to such managing agent personally a copy of the summons attached to a copy of the complaint, sufficiently shows that the service was made upon the corporation, and is prima facie proof that the person served was its managing agent upon whom the summons was authorized to be served for the corporation.

Id.—Laborer’s Lien—Construction of Statute—Pleading—Terms of Statute.—The act of March 31, 1891, giving a lien to mechanics and laborers employed by a corporation for wages earned by and due them weekly or monthly, applies only to corporations doing business in the state who employ laborers or mechanics by the week or month, and whose wages under the terms of their employment are payable weekly or monthly; and a plaintiff seeking to enforce the lien given by that statute must bring himself within the terms stated, and aver that the wages due him were earned weekly or monthly.

Id.—Filing Notice of Lien.—A laborer does not acquire any right to enforce a lien under the act of 1891 by reason of filing a notice of mechanic’s lien.

Id.—Allowance of Counsel Fees.—Where there is no lien to be enforced there can be no allowance of counsel fees in the action.

Harrison, J. The plaintiff under an employment by the defendant performed labor upon certain reservoirs, dams, and ditches belonging to the defendant, at different times between May 27, 1892, and June 23, 1893, amounting in the aggregate, according to the agreed rate of compensation, to the sum of eight hundred and sixty-eight dollars and seventy-five cents, of which he was paid the sum of three hundred and seventy-eight dollars and eighty-two cents. He brings this action to recover from the defendant the balance thereof, viz., four hundred and eighty-eight dollars and ninety-three cents, and to have that sum adjudged to be a lien upon the property of the defendant. Judgment by default was rendered in his favor, and the defendant has appealed.

1. The appellant urges that the judgment is void by reason of there being no proof of service of the summons upon the defendant. The service was made by a private individual, and, in his affidavit, he states that “he personally served the same upon J. H. Elledge, the managing agent of the above-named defendant, Eagle Lake Land and Irrigation Company, a corporation, on the thirteenth day of January, 1894, by delivering to said J. H. Elledge, the said managing agent of said defendant (corporation), personally, in the county of Lassen, state of California, a copy of said summons attached to a true copy of the complaint, .... and that he knows the person so served to be the person acting as managing agent for said defendant (corporation) named in said action.” It is objected that this affidavit merely shows that the service was made upon Elledge, and does not show that it was made upon the corporation. It [630]would be sacrificing substance to form to hold that this service was not made upon the defendant. It sufficiently appears from the complaint that the defendant is a corporation, and the corporation is the only defendant in the action. The affidavit of service upon one who is named the managing agent of the corporation is prima facie proof that he was such officer, and the statute authorizes the service to be made upon him for the corporation. (Rowe v. Table Mountain Water Co., 10 Cal. 442; Golden Gate etc. Min. Co. v. Superior Court, 65 Cal. 187.) If Elledge had been a codefendant with the corporation, and the return of service had shown that only one copy of the summons had been delivered to him, there would be some reason for holding that it was a personal service upon him alone; but, as the corporation is the sole defendant, that reason does not exist.

2. The appellant does not contest the amount for which judgment was given, but contends that the judgment was erroneous in declaring that the plaintiff is-entitled to a lien therefor upon its property. The plaintiff relies in support of the judgment upon the act passed March 31,1891. (Stats. 1891, p. 195.) That act is as follows:

Keener v. Eagle Lake Land & Irrigation Co.

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