(52 kl. 412) WATERS PIERCE OIL CO. v. FOSTER. (No. 5129.) following cases: Where the trial of an issue of fact shall require the examination of mutual accounts, or when the account is on one side only, and it shall be made to appear to the court that it is necessary that the party on the oth- (Supreme Court of Oklahoma. Nov. 16, 1915.) er side should be examined as a witness to prove the account; in which case the referees may be directed to hear and report upon the whole issue, or upon any specific question of fact involved therein; or where the taking of an account shall be necessary for the information of the court before judgment," etc. And section 19, art. 2, of the Constitution, provides that: "The right of trial by jury shall be and remain inviolate." But section 5019, Rev. Laws 1910, appears as section 4182, St. 1893; section 4479, Wilson's Rev. & Ann. St. 1903, and section 5811, Compiled Laws 1909, and consequently was in force at the time of the adoption of the Constitution; and this court, in harmony with all other courts that we have examined, holds that: The constitutional provision declaring that the right of trial by jury shall remain inviolate has reference to the right to jury trial as it existed in the territory, at the time when the Constitution was adopted." State ex rel. v. Cobb, 24 Okl. 662, 104 Pac. 361, 24 L. R. A. (N. S.) 639. The court, in the above opinion, further says: "This construction is sustained by a great many authorities, among which we note the following: Callan v. Wilson, 127 U. S. 540, 8 Sup. Ct. 1301, 32 L. Ed. 223; Work v. State of Ohio, 2 Ohio St. 297, 59 Am. Dec. 671; State ex rel. Jackson v. Kennie et al., 24 Mont. 45, 60 Pac. 589; Kuhl et al. v. Pierce County, 44 Neb. 584, 62 N. W. 1066; State of Nevada v. McClear, 11 Nev. 39; Lavey et al. v. Doig, 25 Fla. 611, 6 South. 259; Ross v. Irving, 14 Ill. 171; Wheeler v. Caldwell, 68 Kan. 776, 75 Pac. 1031; Vaughn v. Scade et al., 30 Mo. 600. "Section 23, art. 3, of the Constitution of Montana declares that the right of trial by jury shall be secured to all, and remain inviolate. Considering this, the Supreme Court said, in the case of State ex rel. Jackson v. Kennie et al., supra: *This instrument must be construed in view of the conditions existing at the time of its adoption, and that the right of trial by jury, guaranteed under this broad declaration, is the right as it then existed, and not one created or extended, except by express terms, by the instrument itself. This rule extends to both civil and criminal trials, and is applied by the courts to the Constitutions of all our states. Proffatt on Jury Trial, § 87; Cooley, Const. Lim. 74, 389; State v. Glenn, 54 Md. 572; Flint River Steamboat Co. v. Foster, 5 Ga. 194, 48 Am. Dec. 248; Ross v. Irving, 14 Ill. 171; Anderson v. Caldwell, 91 Ind. 454, 46 Am. Rep. 613; Allen v. Anderson, 57 Ind. 388; State v. McClear, 11 Nev. 39; Frazee v. Beattie, 26 S. C. 348, 2 S. E. 125; Stilwell v. Kelloug, 14 Wis. 461. The rule is elementary, and so well settled that further comment is unnecessary.'" Baker v. Newton, 27 Okl. 436, 112 Pac. 1034, is to the same effect. Also State Bar Commission ex rel. v. Sullivan, 35 Okl. 745, 131 Pac. 703, L. R. A. 1915D, 1218. The contention of plaintiff in error is (Syllabus by the Court.) 1. CORPORATIONS 668-FOREIGN CORPORATIONS-ACTION AGAINST-SERVICE OF PROCESS-AGENT. * * Article 23, chapter 18, Wilson's Statutes, which includes section 1336, Rev. Laws 1910 Ann., provides that "every foreign corporation shall, before authorized or permitted established, by its certificate under the hand of to transact business * * therein, if already the president and seal of the company, appoint an agent who shall be a citizen of the state and of process may be made in any action in which reside at the state capital, upon whom service said corporation shall be a party; and action may be brought in any county in which the cause of action arose, * ** and service upon said agent shall be taken and held as due service upon said corporation." Held, that where a foreign corporation, other than a railroad, stage company, or insurance company has complied with the provisions of this statute, and appointed an agent in this state for service of process, in compliance with the provisions of said statute, service of process must be made upon such agent; and held, further, that where such corporation has appointed a service agent as provided in the foregoing statute, service of summons in an action brought against said corporation, upon the agent or manager of a local business of said corporation not at the capital of the state, is not sufficient service, and does not give the court jurisdiction of the cause of action. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2603-2627; Dec. Dig. 668.] 2. CORPORATIONS 668-FOREIGN CORPORATION-ACTION AGAINST-SERVICE OF PROCESS -"MANAGING AGENT." "" The term "managing agent," as used in section 4274, Wilson's Statutes of Oklahoma 1903, Ann., which provides that, "where the defendant is a foreign corporation, having a managing agent in this state, service may be had on such all the transactions of the corporation within agent," means an agent whose agency extends to the state, one who has or is engaged in the management of the business of the corporation, in distinction from the management of a local or particular branch or department of said busi ness. ROBBERTS, C. This is an action for per therefore not well taken, and the petition sonal injuries, caused, as plaintiff alleges, by for rehearing should be denied. PER CURIAM. Adopted in whole. an effort on her part in protecting two of her grandchildren from a vicious horse belonging to defendant, and which she alleges For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes attacked her and her grandchildren in the been ever since the 11th day of January, streets of Durant, Okl. The pertinent allegations of her petition are that, when returning to her home from town, having said children in a small cart or wagon drawn by hand, in the public streets of said city, near the plant of defendant, she and said children were attacked by a loose horse belonging to the defendant, said horse pawing and kicking at said children in the wagon, and "in fighting the horse away from them she threw her right shoulder out of place, which gave her great pain and trouble, thereby confining her to her bed for three weeks the first time, and disabled her from performing her usual household duties, and that said injury was permanent and incurable, and that she was damaged thereby in the sum of $2,000, and that said injury and damages were caused by reason of the negligence of the defendant company and its employés, in that the said company owned the horse which caused the injury, and another horse, which have been kept and pampered and are submissive when traveling together, but when turned loose or separated are vicious, cruel, and unmanageable, all of which was known to defendant, its agents and employés; but notwithstanding said facts the superintendent or manager of the said plant at Durant instructed one of the employés, to wit, Barnett, to take one of said horses to the blacksmith shop to be shod: that on the way back from the shop the said horse in his vicious and uncontrollable manner broke loose from the said Barnett on the public streets of said city, and attacked the said plaintiff and her grandchildren, and it was only through her efforts that they were rescued from the said animal and prevented from being injured." "Plaintiff shows to the court that it was negligence of the defendant and its employés to separate the said horses and take the said animal which caused the injury upon the streets and highways of the city, where it was known that people were traveling, and would be subjected to the dangers of said animal, without providing suitable bits with which to handle and control him; that the said Barnett, the agent of the said defendant, was negligent in taking the said horse away from the other horse, and was especially negligent in permitting the said horse to get loose upon the streets and highways where people were known to be traveling; and that but for the want of care and negligence of the said defendant, its agents and employés, the plaintiff would not have received the injuries of which she complains; that the same were received by her through the negligence of the said defendant, its agents and employés, and by no want of care on her part." Plaintiff prays for judgment for $2,000 and costs. The return of the officer shows that the summons was served upon W. C. Cox, the managing agent of defendant at Durant, Okl., at the place of business of defendant in said city. Defendant made special appearance and moved to quash the service of summons, for the reason that the same was not served upon defendant as required by law, and in support of said motion defendant attached thereto an affidavit of one Henry C. Linder, stating that at the time of service of said summons he was the duly appointed, qualified, and acting agent of the defendant for service of summons and other pro 1911. This action is based on alleged injuries which are claimed to have taken place on November 12, 1911. Attached to this motion is also the certificate of appointment of said Linder, which is as follows: "This is to certify that the Waters Pierce Oil Company, a corporation organized and existing under the laws of the state of Missouri, with an authorized capital stock of four hundred thousand dollars, and having its chief office or place of business at the city of St. Louis in said state, has appointed, and does hereby appoint Henry C. Linder its agent at Oklahoma City, Oklahoma, upon whom service of process may be made in any action in which the said Waters Pierce Oil Company may be a party, in accordance with the provisions of chapter 10, article 1, of the Oklahoma Session Laws of 1909; and the said Waters Pierce Oil Company also states that its principal place of business in the said state is at the said Oklahoma City, and the said Henry C. Linder is its resident agent therein, and resides at 714 East Sixth street in said OkPierce Oil Company has caused its name to be lahoma City. In witness whereof, said Waters subscribed hereto by Clay Arthur Pierce, its president, and its corporate seal to be hereto affixed at the said city of St. Louis, state of Missouri, this the 11th day of January, 1911." The motion to quash was overruled and exceptions preserved. Trial was had, judgment for plaintiff, and defendant brings error. This presents the question of whether the service on what is known as the service agent of a foreign corporation is exclusive. [1] It is tacitly conceded that the defendant is a foreign corporation, with its principal place of business in the city of St. Louis, Mo., and its principal place of business for Oklahoma in the city of Oklahoma City, in said state. Also that the only service of summons was had on said W. C. Cox, the managing agent of defendant at Durant, Okl. The statutes of Oklahoma applicable herein are sections 1336 and 1337, Rev. Laws Okla. 1910 Ann., and are as follows: "Every foreign corporation shall, before it shall be authorized or permitted to transact business in this state or continue business therein, if already established, by its certificate under the hand of the president and seal of the company, appoint an agent who shall be a citizen of the state and reside at the state capital, upon whom service of process may be made in any action in which said corporation shall be a party; and action may be brought in any county in which the cause of action arose, as now provided by law. Service upon said agent shall be taken and held as due service upon said corporation; and such certificate shall also state tion in this state, with the address of the resithe principal place of business of such corporadent agent." "A duly authenticated copy of the appointment and commission of such agent shall be filed and recorded in the office of the secretary of state, for which a fee therefor of one dollar shall be paid to the secretary and a like fee of one dollar for each subsequent appointment of any agent so filed. A certified copy of the appointment of said agent under the hand and seal of the secretary of state shall be sufficient evidence of the appointment of said agent in any court. * * These sections of the statute were in force are applicable to the case. Section 1336 was later amended by providing that "the agent on whom service may be made shall reside at the capital," instead of “at some accessible place." Section 1 of the act of 1911 (Session Laws 1910-11, page 46) provides that suit may be brought against a foreign corporation in any county where the plaintiff resides, or where the corporation has its principal place of business, or has property, or in any county where said corporation has an agent appointed upon whom service of process may be had; and section 2 of the same act provides that, in case such foreign corporation fails to appoint any service agent, then service may be made upon the secretary of the state. This would seem to indicate that it was not the intention to recede from the original provision requiring service to be had upon the special agent appointed for that purpose. The case of Bes Line Con. Co. v. Schmidt, 16 Okl. 429, 85 Pac. 711, is the leading and controlling case in this state on this subject. The first syllabus in that case is as follows: "Where a foreign corporation other than a railroad or stage company has complied with the provisions of article 23, c. 18, Wilson's Ann. Ann.), and appointed an agent in this territory Statutes (section 1336, Rev. Laws Okl. 1910 for service of process, with his office and principal place of business at an accessible point in the territory (who shall be a resident of the process must be made upon such agent." state and reside at the state capital), service of Con. Co. v. Schmidt, supra, the court says: method provided for in said section is not ex- Counsel for plaintiff (below) contends that service upon the agent of defendant (W. C. Cox) was sufficient to acquire jurisdiction for the reason that he was the "local man-made upon the person designated by such comager" of the business at Durant, and in support of that contention they cite that section of the statute which provides: pany or corporation personally, service may be made by leaving a copy at the residence. The last section, 4274, provides that, where the defendant is a foreign corporation having a managing agent in this territory, the service may be made upon such agent. Section 4269 provides for the appointment of some designated person This is a general section found under the residing in each county in which the railroad or head or title "Commencement of Civil Ac-stage line may or does run, or in which its business is transacted. "Where the defendant is a foreign corporation having a managing agent in this state, service may be had on such agent." tions," in the Code of Civil Procedure, and is long since superseded by the special acts on the subject; besides, the phrase "managing agent in the state" is to broad to include an ordinary agent in charge of a local business such as the one involved, located in the town of Durant. [2] The phrase "managing agent," referred to in the statutes authorizing service in the state of summons or other process, is defined as follows: "The term 'managing agent.' in the Code, authorizing service in the state of summons upon the managing agent of a foreign corporation, means an agent 'whose agency extends to all the transactions of the corporation; one who has or is engaged in the management of the corporation, in distinction from the management of a particular branch or department of its business.' "A managing agent' must be some person vested by the corporation with general powers involving the exercise of judgment and discretion, as distinguished from an ordinary agent or attorney, who acts in an inferior capacity and under the direction and control of superior authority, both in regard to the extent of his duty and the manner of executing it." "It is contended by the defendant in error that it was the duty, under the law, of the plaintiff each county upon whom service could be made, in error to appoint and designate some person in and that, the company having failed to designate any person for Comanche county, service could be made in the manner in which it was made in this case. It will be noticed that these provisions of law with reference to service are those provided for service against railway and stage companies or corporations, and do not include foreign corporations generally. The 1901 law provides specifically the manner in which service shall be made upon foreign corporations, and does not require that such foreign corporations shall appoint more than one agent, but provides that such appointment shall be an agent who shall reside at some accessible point in the territory, and in the county where the principal business of the corporation is carried on. "Other states have similar laws, and in the case of Oland v. Agricultural Insurance Co. [69 Md. 248] 14 Atl. 669, it was held that this provision for service of process was one of the essential and important terms and conditions upon which such companies were allowed to do business there, and that good faith required that the persons so selected and appointed for the purpose should be served, and not the local agent, who would be likely to know little or nothing of the suit. In the case of Baile v. Eqthat a similar law providing for the appointuitable Fire Ins. Co., 68 Mo. 617, it was held ment of an attorney for the foreign corporation, upon whom service of process could be made, had superseded the general law, providing for service upon corporations; and in the case of Stone v. Travelers' Ins. Co., 78 Mo. 655, the law was again upheld; the court holding that the mode of suing a foreign insurance company, not do The case relied on by counsel for plaintiff, Continental Ins. Co. v. Hull, 38 Okl. 307, 132 Pac. 657, is an insurance case, and the rule in such cases is special and different from the general rule involved herein, and therefore is in no way applicable. This is an ordinary action for tort to recover damages for alleged personal injuries. The rec-mesticated there by reason of having its chief ord shows that the defendant had a regular service agent appointed at the time. office or principal place of business in that state, as provided by such section of the insurance law, is exclusive of all other modes of service. "From a careful investigation of these statutes, it would seem that the Legislature by this last act intended to provide that some person should be designated upon whom the service of process could be made in actions against foreign corporations, and that service of process should be made upon such persons." where trial was had and judgment again rendered for plaintiff. Motion for new trial was filed and overruled, and the bank brings error. Plaintiff alleged in her complaint that she had an account for feed furnished the defendWe are fully satisfied that service of sum-ant Hodges for the purpose of feeding said mons upon the local agent at Durant did not give jurisdiction to the court, and therefore the case should be reversed. PER CURIAM. Adopted in whole. (49 Okl. 370) FIRST NAT. BANK OF MOUNTAIN VIEW v. WILSON et al. (No. 4896.) stock during a period of time from about April 1 to about September 1, 1911. This was admitted in the testimony at the trial in the county court, and no issue was made as to the correctness of her claim. The bank relied upon a chattel mortgage upon said stock, dated January 7, 1911, duly recorded and unsatisfied., [1] A preliminary objection is made by (Supreme Court of Oklahoma. Nov. 23, 1915.) plaintiff in error to the jurisdiction of the The lien of a valid recorded chattel mortgage will take precedence over the subsequently acquired lien of a person furnishing feed to the owners of the animals embraced in said mortgage, unless such feed was furnished to the owner with the consent of the mortgagee. [Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. §§ 228-236; Dec. Dig. 138.] 3. CHATTEL MORTGAGES 138 · LIEN-PRIORITIES. AGISTER'S The lien of a person who furnishes feed to the owner of certain animals with the knowledge and consent of a mortgagee is sunerior to the lien of said mortgage, although furnished after the filing thereof. [Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. §§ 228-236; Dec. Dig. 138.] Error from County Court, Kiowa County; J. W. Mansell, Judge. Action by Jennie D. Wilson against the First National Bank of Mountain View and others. Judgment for plaintiff, and the defendant named brings error. Affirmed. Rummons & Logan, of Hobart, for plaintiff in error. Thos. W. Conner, of Oklahoma City, for defendant in error. justice court in the first instance, and of the county court on appeal, to enforce the lien claimed; it being contended that the proceeding is equitable in its nature, and that a justice of the peace is without equitable jurisdiction. There is no merit in this contention. The procedure for enforcing liens of this character is pointed out in chapter 3, art. 5, Wilson's Ann. & Rev. Stat. 1903, being chapter 3, art. 4, Rev. Laws 1910. [2] The question here is whether the bank under its mortgage has a prior lien on said stock or whether plaintiff Wilson under chapter 3, Sess. Laws 1901, p. 43, has a prior lien thereon. Section 2 of said act is as follows: ' "Any person or persons, partnership, firm or corporation within this territory, or in any border county of the adjacent states, furnishing or providing to the owner of such domestic animals any corn, feed, forage or hay, for the sustenance of such domestic animals, shall, for the amount due for such corn, forage, feed and hay,. have a lien on said animals." Section 3 of said act is as follows: "All liens, not to exceed in the aggregate twenty-five per cent. of the value of such animals, against any domestic animal or animals for labor, grazing, herding, or feeding, or for corn, feed, forage or hay, furnished the owner of such domestic animals as herein provided, and actually used for such purpose, shall be prior to all other liens thereon, and no recital or stipulation in any mortgage or other incumbrance on any cattle so fed shall be held to supersede or vitiate the lien here provided for." These sections are embraced in chapter 3, art. 5, of Wilson's Rev. & Ann. Stat. 1903, and appear as sections 109 and 110 thereof. Plaintiff contends that, under said section 3, her lien is paramount to that of defendHARDY, J. Defendant in error Wilson fil- ant bank. This section of the statute was beed her complaint in a justice court of Kiowa fore the court in the case of National Bank county seeking to enforce an agister's lien of Commerce v. Jones, 18 Okl. 555, 91 Pac. upon certain animals, alleged to be the prop 191, 12 L. R. A. (N. S.) 310, 11 Ann. Cas. erty of one J. W. Hodges, and naming as 1041; and in construing the same Chief Jusone of the defendants therein the plaintiff tice Burford, for the court, held section 3 to in error, First National Bank of Mountain be unconstitutional and void. Plaintiff says View. All of the defendants except Hodges that said statute was only declared invalid and the bank made default; and on Novem- so far as that particular case was concerned, ber 14, 1911, trial was had in the justice because the mortgage there involved had becourt, resulting in judgment for plaintiff and come a valid lien almost three months before ordering the property sold to satisfy said the act was adopted, and that said section, lien. The bank appealed to the county court, so far as rights thereafter acquired are con cerned, is valid and still in force. Such, we | stock had to be fed, and that it would be all think, is not true. The court did not seek right, that she, as landlord would be perto distinguish between the case under consid- fectly safe in putting up the feed, and she eration and other cases, but in the third para- thereupon borrowed the money from the bank graph of the syllabus specifically held: and purchased the feed for Hodges, which was, in fact, fed to and consumed by said stock. The rule as stated in National Bank of Commerce v. Jones, supra, is that: "An act of the Legislature which postpones an existing valid mortgage lien and makes a subsequently created lien superior to the mortgage lien is a law impairing vested property rights. and impairing the obligations of a contract, and is void for conflict with the Constitution of the United States." The section having been held void, it is not for us to say whether the conclusion of the court in that respect was correct. "The lien of a valid recorded chattel mortgage will take the precedence over the subsequently acquired lien of a livery stable keeper or agister upon animals placed in his charge, unless such animals were delivered to such lienholder to be kept and cared for by him with the consent of the mortgagee." There is a respectable line of authorities to The contention was further made in that In that case the animal upon which the case that the lien for feeding and caring for lien was claimed was left in the possession the animal was superior to the mortgage. In of Jones without the knowledge or consent denying this contention, the court called at- of the mortgagee. Jones was the keeper of a tention to the fact that the weight of au- feed barn, and kept and fed the horse until thority was to the contrary, and that the state- the commencement of that action. The statement of the rule by the court that the lien of ment of the rule in the second paragraph of a prior valid recorded chattel mortgage will the syllabus quoted would indicate that the take precedence over the subsequently acquir- court was of the opinion, although the quesed lien of a livery stable keeper or agister tion was not decided, that, had the animal upon animals placed in his charge, unless been placed in the possession of Jones with such animals were delivered to the livery the consent of the mortgagee, Jones would stable keeper or agister to be kept and cared have acquired a lien thereon which he could for by him with the consent of the mort-enforce against the rights of the mortgagee. gagee, reference is made to the following cases: 19 Am. & Eng. Ency. Law (2d Ed.) 438; 2 Cyc. 319; Sargent v. Usher, 55 N. H. 287, 20 Am. Rep. 208; Blackford et al. v. Ryan et al. (Tex. Civ. App.) 61 S. W. 161; Howes v. Newcomb, 146 Mass. 76, 15 N. E. 123; Everett v. Barse Live Stock Com. Co., 115 [3] Under the facts in this case we think the bank ought not to be heard to say that Mo. App. 482, 88 S. W. 165; Cable et al. v. Duke et al., 132 Mo. App. 334, 111 S. W. 909; plaintiff Wilson is not entitled to pay for Erickson v. Lampi, 150 Mich. 92, 113 N. W. such feed, which inured to the benefit of the 778, 121 Am. St. Rep. 607; McGhee v. Ed-bank in preserving the property upon which wards, 87 Tenn. (3 Pick.) 506, 11 S. W. 316, it had its mortgage. See Bank v. Jones, su3 L. R. A. 654; Chapman v. First Nat. Bank, pra, and notes thereto. 98 Ala. 528, 13 South. 764, 22 L. R. A. 78; Sullivan v. Clifton, 55 N. J. Law, 324, 26 Atl. 964, 20 L. R. A. 719, 39 Am. St. Rep. 652; Hanch v. Ripley, 127 Ind. 151, 26 N. E. 70, 11 L. R. A. 61; Wright v. Sherman, 3 S. D. 290, 52 N. W. 1093, 17 L. R. A. 792; Ellison v. Tuckerman, 24 Colo. App. 322, 134 Pac. 163; Grubb v. Lashus, 42 Utah, 254, 129 Pac. 1029. It is true that the mortgage was on fil at that time, and the plaintiff knew of its execution, but the bank could waive its priority, and when by its action under the circumstances it induced her to purchase feed and loaned her the money with which to make such purchase, we think it has waived the right to assert the priority of its mortgage over her lien for the feed so furnished. firmed. All the Justices concur. (52 Okl. 392) BROWN et al. v. CONNECTICUT FIRE INS. CO. OF HARTFORD, CONN. Plaintiff says, however, that the defendant bank, under the facts in this case, has waived its right to claim that its mortgage is paramount to the lien of plaintiff for the feed furnished. It appears from the evidence that Hodges, the owner of the stock, had borrowed a certain sum of money from the bank, giving the bank a mortgage upon the property as security, and had thereafter been refused further credit by the bank, and that he was unable to buy feed, and requested 1. CONTRACTS 97-RECITALS-BINDING EFplaintiff to furnish same; that plaintiff ap plied to the defendant bank for the money with which to buy said feed, stating the purpose for which she wanted said money, and the cashier of the bank stated to her that the (No. 5087.) (Supreme Court of Oklahoma. Nov. 16, 1915.) (Syllabus by the Court.) FECT. In the absence of fraud or mistake, a party accepting a written contract without objection is bound by its recitals. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 442-446; Dec. Dig. 97.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |