Washington & Rockville Railway Co. v. Johnson

Constable, J., delivered the opinion of the Court. This case was brought to this Court upon a writ of error from the Circuit Court for Montgomery County by the Washington & Rockville Railway Company of Montgomery County, plaintiff in error, against Nancy Johnson, defendant in error. There are four regular trial terms held by the Circuit Court for Montgomery County — January, March, June and November, of which January and June are non-jury terms. By the Act of 1894, Chapter 561, three intermediate return days — the first Mondays in May, August and October — were provided for in addition to the four return days existing previously on the first day of each term.

This Act provided that all process was returnable to one of these return days or to the first day of the next term, whichever should first occur, unless otherwise ordered in writing by the plaintiff; and on the return of the original writ not executed the same could be renewed, returnable to the next return day or the first day of the succeeding term, whichever should first occur. ²²⁰ If the defendant, excepting suits on contract, should be served with the writ and should fail to appear on the return day named therein, the Cleric of the Court was directed to enter his appearance on the following day, and place the case upon the trial docket and it stood for trial at the next succeeding term. The action in this case was in tort for damages growing out of an alleged assault by one of the company’s conductors, and was filed in the June term on the 4th day of June, 1913, and on the same day summons was issued for the defendant, returnable on the return day in August. On said return day the Sheriff returned: the writ indorsed aá: “Served on the Washington and Koekville Railway Company, a corporation, by serving on William H. Talbott, attorney, etc., this 4th day of June, 1913.” On the day of said return William IT. and Henry M. Talbott had their appearance entered specially to move to quash the return of the Sheriff. On the 21st of August the said attorneys, appearing specially for the purpose of the motion, filed, in writing, a motion to quash the said return, with the reasons therefor, the principal one being that the writ was not served upon a proper officer of the defendant, in that there was a director of the company residing in the State and in fact in Montgomery County.

On the 10th day of November next, it being the first day of the November term, the plaintiff filed an order to renew the process; thereupon another writ of summons was issued to the Sheriff, and made returnable to the first day of the January term; and the same was returned endorsed as having been served upon a director of said corporation on the 11th day of November. On the 12th day of November the Court passed an order quashing the original return. On February 4th the same attorneys again appeared specially, and filed a motion to have the case marked discontinued, for the reason that the plaintiff had failed to have the writ, originally issued, renewed from term to term. This motion was overruled, and the defendant excepted; and on the same day ²²¹ the same attorneys entered their appearance generally for the defendant, expressly reserving any and all rights of the defendant under the prior proceedings.

The case was finally tried, resulting in a verdict for the plaintiff; and after a motion for a new trial had been overruled the defendant filed his petition for a writ of error. The first question which presents itself is, was the Court below correct in quashing the return first made by the Sheriff? By Section 5 of Chapter 424 of the Acts of Assembly, 1912, the defendant company was directed to appoint an officer or attorney with full authority to accept service of summons for the company. It is contended by the defendant in error that, by virtue of this statute, the service upon the attorney was a proper and valid service of her writ.

We can not agree with this contention for the reason that the entire act is an attempt to regulate the fares to be charged by the company; and in providing a penalty for a violation of its provisions, makes provision as to the manner in which the company may be served with a warrant. It is clear that the only authority conferred upon the officer or attorney so designated was for acceptance of writs issued for violations of that Act, and not a general authority. The defendant being a domestic corporation, process against it was governed by Section 87 of Article 23 of the Code. It is therein provided that process against such a corporation may be served on its president, director or other officer, and if none resides in the State, it may be proceeded against by attachment as a non-resident, or such process may be served on any agent or other person in the service of the corporation.

It has long been held that an attorney of a corporation is not included in the word officer, and that a summons served upon an attorney where the statute designates an officer is not a good service: N. C. R. R. v. Rider, 45 Md. 24 . By the statute just referred to, before any agent or other person in the service of the corporation could be served with process for it, it was necessary that the first class mentioned therein ²²² should have been exhausted, and this could not have been while any one of them resided within the State. But the fact was