the rights of corporations arising under section 392 must be true of the rights of corporations arising under section 395. We see no escape from this conclusion."

A suit by a county against a non-resident California corporation, brought in the county suing, on motion of the defendant under section 394 of the Code of Civil Procedure, must be transferred for trial to some other county. The court says the provision in the state constitution "subject to the power of the court to change the place of trial as in other cases" is authority for looking to section 394 for the "other cases" referred to in the constitution.88

In the case of a foreign corporation owning and operating a railroad in this state, there being no evidence that it had complied with section 408 of the Civil Code by filing a copy of its Articles of Incorporation with the secretary of state and a certified copy of the same in the office of the county clerk where its principal place of business was located, it was held that it was not entitled under the provisions of article 12, section 16, of the constitution, nor under section 395 of the Code of Civil Procedure, to remove the case for trial to the county where it had its principal place of business. It was also said that there is no statute giving a foreign corporation a local (county) residence where alone it can be sued.

33 Yuba County v. North America etc. Min. Co., 12 Cal. App. 223-227, 107 Pac. 139.

34 Waechter v. Atchison etc. R. Co., 10 Cal. App. 70, 101 Pac. 41; see, also, Pitman v. Carstenbrook, 11 Cal. App. 224, 104 Pac. 699, which also says non-resident defendants are not entitled to change or control the place of trial.

CHAPTER XXVIII

MANNER OF COMMENCING ACTIONS AGAINST AND SERVICE UPON CORPORATIONS

So far as sections 410, 411, and 412 of the Code of Civil Procedure apply to corporations, they are as follows:

8410. A copy of the complaint must be served, with the summons, upon each of the defendants.

§ 411. The summons must be served by delivering a copy thereof, as follows:

1. If the suit is against a corporation formed under the laws of this state, to the president or other head of the corporation, vice-president, secretary, assistant secretary, cashier, or managing agent thereof;

2. If the suit is against a foreign corporation, or a non-resident joint stock company, or association, doing business and having a managing or business agent, cashier, or secretary within this state, to such agent, cashier or secretary.

§ 412. Where the person on whom service is to be made... is a foreign corporation having no managing or business agent, cashier or secretary or other officer

. . within the state, and the fact appears by affidavit to the satisfaction of the court or a judge thereof (in the same manner as in case of non-resident persons; such service may be made by publication).

Or if a foreign corporation has designated some person, under the provisions of section 405 of the Civil Code, upon whom process may be served,

Such process may be served on the person so designated,

Or, in the event that no such person is designated, then on the secretary of state, and the service is a valid service on such corporation.

SERVICE OF PROCESS

Where, under the provisions of a statute, practically identical with the first subdivision of section 411 above, service of summons was made upon one "who was in possession of the property" of the corporation, there being no showing that he was one of the officers named, it was held that a judgment by default founded upon such service was invalid;1 and a judgment upon a service of summons "upon J. S., one of the proprietors of the company," was set aside for the same reason. A teller of a bank, whose only duty is to receive and pay out money, is not a managing agent of the corporation, much less one of the officers named or other head of the corporation, and the service of an attachment or garnishment upon him is ineffective as against the corporation. A service upon the de jure president was held good, although he had ceased attending meetings, and had removed from the county and a president pro tem had been elected in his place. But an order to show cause why a corporation should not be punished for contempt for disobeying an injunction, when the officers conceal themselves, may be served on the attorneys of the corporation."

A sheriff's return that he served the summons on the president and secretary of the corporation is prima facie evidence that the persons named in the return

1 Aiken v. Quartz Rock etc. Min. Co., 6 Cal. 186.

2 O'Brien v. Shaw's Flat etc. Canal Co., 10 Cal. 343.

3 Kennedy v. Hibernia Sav. etc. Soc., 38 Cal. 151.

4 Eel River etc. Co. v. Struver, 41 Cal. 616.

5 Golden Gate etc. Co. v. Superior Court, 65 Cal. 187, 3 Pac.

628;

Eureka Lake etc. Canal Co. v. Superior Court, 66 Cal. 311, 5 Pac. 490; Foley v. Foley, 120 Cal. 33, 39, 65 Am. St. Rep. 147, 52 Pac.

were such officers, and the same is true of the affidavit made by a private person."

A clerk in a store of a foreign mining company is not a managing agent or cashier of the company within the meaning of the law as to the levy of attachments.8

"Under the provisions of this section, in order that the court may get jurisdiction over a foreign corporation, it is requisite that such corporation shall be doing business within the state at the time that the summons is served.""

Nor will it be presumed that the president of such a corporation, who is served with process within this state, is the managing or business agent of such foreign corporation.10

Even a domestic corporation may, in a proper case, be served by publication. For the purposes of the above sections, the court holds that the word "person' includes domestic corporations, and an affidavit showing that the corporation had no officer or agent within the state upon whom service of summons could be made, and that all of them had departed from the state was sufficient, and held that, in the sense of this section, the corporation had departed from the state, and service by publication was warranted and sufficient.11

A suit brought by attorneys at the instance of the president and secretary (the other directors being

6 Rowe v. Table Mt. Water Co., 10 Cal. 441.

7 Keener v. Eagle Lake Land etc. Co., 110 Cal. 627, 630, 43 Pac. 14.

8 Blanc v. Paymaster Min. Co., 95 Cal. 524, 29 Am. St. Rep. 149, 30 Pac. 765,

9 Herron Co. v. Westside etc. Co., 18 Cal. App. 778, 780, 124 Pac. 455; Jameson v. Simonds Saw Co., 2 Cal. App. 582, 84 Pac. 289. So as to a corporation which has forfeited its charter under the license law, Carpenter v. Bradford, 23 Cal. App. 560, 138 Pac. 946. 10 Ibid.

11 McKendrick v. Western Zinc etc. Co., 165 Cal. 24, 130 Pac. 865.

dead) and the stockholders is legally instituted, and third parties have no ground of objection.12

A complaint against the "Independent Company" and a service upon R., a "member" of that company, will not support a judgment against the "Independent Tunnel Company," although the summons was addressed to that company.13 But if a corporation sued under a wrong name answers by its true name, and judgment is rendered against it by its true name, the judgment is good.14

The question whether a person served as an officer of the corporation is such officer is a question of fact to be determined by the court.15

Where the defendant's corporate character is alleged and not denied, it is error to find that it is not a corporation.16

In an action by a corporation, the fact that the complaint does not state that the plaintiff is a corporation is not sufficient to sustain either a general or special demurrer to the complaint;17 this objection goes only to the capacity of the plaintiff to sue, and can be raised only by answer; nor is the omission of such an allegation in regard to the character of the defendant necessary to give the court jurisdiction either over the person of the defendant or the subject matter of the action.1

12 San Diego Gas Co. v. Frame, 137 Cal. 441, 446, 70 Pac. 295. 13 King v. Randlett, 33 Cal. 318.

18

14 Mahon v. San Rafael etc. Road Co., 49 Cal. 269; Haynes v. Backman, 3 Cal. Unrep. 710, 31 Pac. 745, 746.

15 J. L. Mott Iron Works v. West Coast etc. Supply Co., 113 Cal. 341, 45 Pac. 683.

16 Moynihan v. Drobaz, 124 Cal. 212, 71 Am. St. Rep. 46, 56 Pac. 1026.

17 Los Angeles R. Co. v. Davis, 146 Cal. 179, 106 Am. St. Rep. 20, 79 Pac. 865.

18 Crouch v. H. L. Miller etc. Co., 169 Cal. 341, 146 Pac. 880.