Fauver, Worth A., Jr.

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Case Western Reserve University School of Law

Case Western Reserve Law ReviewVolume 13 | Issue 31962Civil Procedure--Service of Process upon aCorporationWorth A. Fauver Jr.Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrevPart of the Law CommonsThis Recent Decisions is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law ScholarlyCommons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve UniversitySchool of Law Scholarly Commons.Recommended CitationWorth A. Fauver Jr., Civil Procedure--Service of Process upon a Corporation, 13 W. Res. L. Rev. 605 (1962)Available at: https://scholarlycommons.law.case.edu/caselrev/vol13/iss3/32Service of Process Upon a Corporationof action arises out of, and is based on, the same alleged negligent act thatcaused the injury to the minor. The majority rule would say that theparent has an independent cause of action which is true in some respects.However, upon what will the parent base his action where in a prior suitthe defendant has been found to be free from negligence? Should thecourts ignore the fact that the defendant has been found to have com-mitted no tort against the minor and continue to state "different parties,different causes of action"? Through common sense and necessity a logi-cal and more practical view would be that the parent's right is derivativeand secondary. Hence, the parent's rights should be conditioned on theminor's right of recovery.The decision in the Videtto case is undoubtedly the Ohio rule andrepresents the prevailing rule throughout the United States. In allprobability the Ohio courts will continue to follow this rule notwith-standing a well reasoned minority view. However, it is suggesed thatOhio should re-examine the problem closely.WILLIAM A. PAPENBROCKCIVIL PROCEDURE - SERVICE OF PROCESS UPON A CORPORATIONMoriarty v. Westgate Center, Inc.172 Ohio St. 402, 176 N.E.2d 410 (1961)It is well established that a corporation cannot avoid service of processby the absence of those officers and employees who are designated bystatute as the proper recipients of such service.1 Ohio Revised Codesection 2703.10 provides for service of summons, in the absence of thetherein named officers and employees, upon the person having chargeof the office or usual place of business of the defendant corporation.Recently the Supreme Court of Ohio broadened the interpretation ofthat statute by permitting service of summons on one not in fact anemployee of the defendant corporation being served.2In Moriarty v. Westgate Center, Inc.3 the Court of Appeals for Cuya-hoga County affirmed the trial court's decision granting a motion to quashservice of summons on the defendant corporation. However, on appealthis decision was reversed by a unanimous supreme court.1. Fee v. Big Sand Iron Co., 13 Ohio St. 563 (1862); Sunday Creek Coal Co. v. West, 47Ohio App. 537, 192 N.E. 284 (1933); Tioga Coal Corp. v. Silnan, 125 W. Va. 58,22 S.E.2d873 (1942).2. Moriarty v. Westgate Center, Inc., 172 Ohio St. 402, 176 N.E.2d 410 (1961). See alsodiscussion in Civil Procedure section p. 440 supra, and in Corporations, Partnerships, andAssociations section, p. 453 supra.3. Ibid.1962]WESTERN RESERVE LAW REVIEWDefendant corporation's motion to quash service was based on theallegation that in serving the summons the sheriff had failed to complywith the statutory requisites.4 To sustain that allegation defendantargued that both the chief and subordinate officers of defendant corpora-tion were available in the county for service and could have been found uponreasonable inquiry, and that the person served was neither an employeeof defendant corporation nor in charge of its office.'The supreme court was confronted with a situation wherein sum-mons had been served upon a non-employee in the office of the defendantcorporation, who had in turn notified the subordinate officers of thatcorporation of the summons prior to the running of the statute of limita-tions. Thus, the defendant corporation had been given an opportunity todefend in the proceedings against it.Because there had been no prior judicial determination of whoconstitutes "the person having charge thereof," the court was free toprovide a definition. It seized upon the fact that the statute does notrequire that such person be either an officer or employee of the corpora-tion being served. The result was an interpretation of "the person havingcharge thereof" to mean the superior of the persons in the office of thedefendant corporation at the time of service, whether or not such personbe an employee or officer of that corporation.6The fundamental purpose of service statutes is to provide that noticewhich will be most likely to result in actual notice to the defendantcorporation of the proceedings against it.7 It seems likely that a personnot in the employ of a corporation would not utilize sufficient effort tocall such summons to the attention of the corporation. On the otherhand, an employee or person left in charge of a corporation's office would4. Ohio Revised Code section 2703.10 provides: "A summons against a corporation maybe served upon [1] the president, mayor, chairman or president of the board of directors ortrustees, or other chief officer; or [2) if its chief officer is not found in the county, upon itscashier, treasurer, secretary, clerk, or managing agent; or [3] if none of such officers can befound, by a copy left at the office or usual place of business of the corporation with the personhaving charge thereof ... ." (Emphasis added.).5. Record, p. 6-9, Moriarty v. Westgate Center, Inc., 172 Ohio St. 402, 176 NXE.2d 410(1961). The affidavits of the corporate officers and that of the non-employee, who wasserved with the summons, establish that the person served was an employee of a real estatemanagement agency which was under contract to manage the affairs of defendant corporation.The affidavits also show that the agency and defendant corporation occupy space in the samesuite of offices.6. Moriarty v. Westgate Center, Inc., 172 Ohio St. 402, 407, 176 N.E.2d 410, 413 (1961).The court made no effort to define further the term "superior."7. Abraham v. Akron Sausage Co., 23 Ohio App. 224, 155 N.E. 254 (1926). One authoritystates: "The fundamental object of all laws relating to the service of process is to give thatnotice which will in the nature of things most likely bring the attention of the corporation tothe commencement of the proceedings against it, and when the legislature carries out thisdesign its provisions should not be stricken down by the courts." 42 AM. JUr. Process § 107(1942). The court in the Moriarty case quoted with approval the portion of this statementpreceding the comma, but neither quoted nor commented on the latter portion of the state-ment. 172 Ohio St. 402, 407, 176 N.E.2d 410, 413 (1961).[VoL 13:3Service of Process Upon a Corporationbe more likely to bring such matters to the attention of the chief orsubordinate officers of the corporation. Although the non-employee inthe Moriarty case brought the summons to the attention of the defendantcorporation, it cannot be assumed that every non-employee would dothe same. For this reason it would seem that the judicial interpretationof section 2703.10 in the Moriarty case would place an undue burden onthe defendant corporation by requiring it to depend upon a person notin its employ to notify its officers of the summons. In the light of thepurpose of service statutes, the interpretation by the Moriarty court shouldbe limited to the factual situation in that case.In attempting to provide a means by which both service on andnotice to a corporation could be effected, the Ohio General Assemblyprovided for three alternate methods of service 8 It recognized thatservice pursuant to the first (upon the chief officer) and second (uponthe subordinate officers) would be more likely to provide the corporationwith actual notice, and, therefore, subjected the third method (uponthe person in charge) to a condition precedent. Previous courts haveheld that the third method must be strictly construed and can be utilizedonly after the sheriff has made a reasonable effort to ascertain the where-abouts of each of the persons included in the other two categories.Although the court in the Moriarty case found that the statute hadbeen complied with in regard to the person served on behalf of thecorporation, it was confronted with the fact that the sheriff had made noeffort to find the chief or subordinate officers of defendant corporation.The supreme court recognized that the failure to comply with such acondition precedent should have the effect of invalidating the service ofsummons on a corporation. However, it seemed to limit such recognitionto the case wherein there was a question of fact as to whether the atten-tion of the defendant corporation was promptly brought to the commence-ment of proceedings against it. Without further discussion, it held thatwhere actual notice of the summons is received by the corporation, thefact that the sheriff has not made a reasonable effort to find the chiefor subordinate officers of that corporation prior to serving the summons8. OHIO REV. CODE § 2703.10. See note 4 supra.9. In Sunday Creek Coal Company v. West, 47 Ohio App. 537, 192 N.E. 284 (1933), thecourt held that when the sheriff made no attempt to locate the company's officers, his leavinga copy of the summons with the payroll clerk did not constitute effective service. In Abrahamv. Akron Sausage Company, 23 Ohio App. 224, 155 N.E. 254 (1926), the court held that asheriff may serve summons on a subordinate officer of a corporation before he finds the chiefofficers of the corporation. Though the case was decided under the second (service on asubordinate officer) method, the court noted that service by the third method is conditionedby the mandatory verb can, while the second method is not so conditioned. This case wastried under Ohio General Code section 11288, the immediate predecessor of Ohio RevisedCode section 2703.10. In the latter statute the mandatory verb can still conditions theuse of the third method of service. The court in the Moriarty case either overlooked or dis-regarded this fact.19( ]1

Civil Procedure--Service of Process upon a Corporation

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Civil Procedure--Service of Process upon a Corporation

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