Smith v. Finance Co. of America, 207 N.C. 367 (1934)

Nov. 21, 1934 · Supreme Court of North Carolina

207 N.C. 367

W. G. SMITH and His Wife, ORA H. SMITH, v. THE FINANCE COMPANY OF AMERICA.

(Filed 21 November, 1934.)

1. Process B d—

A foreign corporation, having property and doing business in this State and not having a process agent here, may be served with summons by service on the Secretary of State, in accordance with C. S., 113T.

2. Limitation oí Actions B e—

The nonresidence of a foreign corporation will not prevent the running of the statute of limitations in its favor where constantly from the accrual of the cause of action it might have been served with summons under the provisions of C. S., 1137.

3. Limitation of Action^ A b—

An action to recover the statutory penalty for usury, C. S., 2306, is barred after the lapse of two years from the accrual of the cause of action in the absence of disability or nonresidence affecting the running of the statute. G. S., 442 (2).

Appeal by plaintiffs from Grady, J., at June Term, 1934, of Wake.

Affirmed.

This is an action to recover of the defendant the statutory penalty for usury. C. S., 2306.

Among other defenses relied on by it, the defendant in its answer pleads the statute of limitations, C. S., 442 (2). The facts with respect to this defense were agreed on by the parties to the action. They are as follows:

1. The plaintiffs are citizens of the State of North Carolina and residents of "Wake County, in said State.

2. The defendant is a corporation, organized under the laws of the State of Delaware, with its principal office in the city of Baltimore, in the State of Maryland. It has not been domesticated in the State of North Carolina, and at the date the cause of action alleged in the complaint accrued it did not have, nor has it at any time since said date had in this State, a process agent on whom summons or other process could be served. It has, however, since said date continuously, until the commencement of this action, owned property and done business in this State.

3. The summons in this action was issued on 28 September, 1933, and was served on Stacey W. Wade, Secretary of State of North Carolina, under the provisions of O. S., 1137. The cause of action alleged in the complaint accrued more than two years prior to 28 September, 1933.

On these facts the court was of opinion, and accordingly adjudged, that the action of the plaintiff is barred by the statute of limitations, and that for that reason the plaintiffs cannot maintain this action.

The plaintiffs appealed from the judgment to the Supreme Court, assigning error in the judgment.

J. A. Thebault for plaintiff.

J. L. Emanuel and Oscar Leach for defendant.

CoNNOR, J.

Under the provisions of C. S., 1137, where a corporation having property or doing business in this State, whether incorporated under its laws or not, has failed to have an officer or agent in this State upon whom service of process in an action begun in a court of this State against such corporation may be served, such process may be served on the Secretary of State by leaving a copy of the process with him. In such case the Secretary of State is required by the statute to mail the copy to the president, secretary, or other officer of the corporation, upon whom, if he was a resident of this State, service could be made. A service of process under the provisions of the statute is valid. In Lunceford v. Association, 190 N. C., 314, 129 S. E., 805, it is said: “And in case of foreign corporations doing business in this State without complying with the provisions of said section, we have held that valid service of process may be made under this statute in the manner indicated, as well as on officers and agents of sucb corporations under tbe general provisions of C. S., 483.”

In tbe instant case sucb service could bave been made on tbe defendant at tbe date tbe cause of action alleged in tbe complaint accrued. For tbat reason tbe statute of limitations (C. S., 442 [2]) began to run at tbe date tbe cause of action accrued, and as service could bave been made under tbe statute at any time before tbe commencement of tbis action, tbe statute continued to run against tbe plaintiffs. Tbe defendant, altbougb a nonresident or foreign corporation, was at all times from tbe date tbe cause of action accrued until tbe commencement of tbis action subject to tbe jurisdiction of tbe courts of tbis State. Steele v. Telegraph Co., 206 N. C., 220, 113 S. E., 583. Eor tbat reason, two years having elapsed from tbe date tbe cause of action accrued to tbe date of tbe commencement of tbe action, tbe action is barred. See Anderson v. Fidelity Co., 114 N. C., 417, 93 S. E., 948, where it is said tbat “it is established with us tbat when a foreign corporation has complied with provisions of our statute, Rev., sec. 1243 (C. S., 1137), by maintaining an agent in tbe State upon whom valid service of process may be bad, our statute of limitations is available for its protection as in case of citizens and residents within tbe State, and a perusal of tbis well-considered decision (Volivar v. Cedar Works, 152 N. C., 656, 68 S. E., 200), and others to like import, will show tbat tbe principle is not restricted to cases where there has been formal compliance with tbe statutory requirements for domesticating these corporations and tbe appointment of process agents, but extends and should apply to all cases where sucb corporations doing business or bolding property within tbe State bave been continuously for tbe statutory period subject to valid service of process, so as to confer jurisdiction on our courts to render binding judgments in personam against them.”

There is no error in tbe judgment. It is

Affirmed.