Appeal from First Judicial District Court, Ormsby County; Frank P. Langan, Judge.
M. A. Diskin, for Appellant.
Mack & Green, for Respondent.
By the Court, McCarran, C. J.:
This is an appeal from an order of the district court refusing to set aside a default judgment entered against appellant. The Lou Dillon Goldfield Mining Company is a corporation organized and existing under the laws of the State of Arizona. It had at one time done business in this state, and at the time of the institution of this suit was the owner of mining claims in the Goldfield mining district. At the time of the commencement of this action it had no managing or business agent, cashier, or secretary, within this state (Rev. Laws, 5023), nor had it a process agent as provided for by section 5024, Revised Laws. Notwithstanding the fact that the only place at which the appellant company had ever conducted business within this state and the only place in which it was the owner of property within the state was Esmeralda County, the action in this instance was commenced in Ormsby County, the place of residence of the respondent-receiver. The return of the sheriff of Esmeralda County made to the summons disclosed the inability of that officer to obtain personal service on the corporation. He certifies:
I have been unable to find any agent, president, cashier, director, resident agent, designated agent, superintendent or other officer, business head or person representing said corporation within this state, upon whom service of said summons could be made as service upon
said corporation and have been unable to find any officer of said corporation within this state.
Section 5024, Revised Laws, provides:
Every incorporated company or association created and existing under the laws of any other state, or territory, or foreign government, or the government of the United States, owning property or doing business in this state, shall appoint and keep in this state an agent upon whom all legal process may be served for such corporation or association. Such corporation shall file a certificate, properly authenticated by the proper officers of such company, with the secretary of state, specifying the full name and residence of such agent, which certificate shall be renewed by such company as often as a change may be made in such appointment, or vacancy shall occur in such agency.
Section 5025, Revised Laws, provides:
If any such company shall fail to appoint such agent, or fail to file such certificate for fifteen days after a vacancy occurs in such agency, on the production of a certificate of the secretary of state showing either fact, which certificate shall be conclusive evidence of the fact so certified to and be made a part of the return of service, it shall be lawful to serve such company with any and all legal process, by delivering a copy to the secretary of state, or, in his absence, to any duly appointed and acting deputy secretary of state, and such service shall be valid to all intents and purposes; provided, that in all cases of such service the defendant shall have forty days (exclusive of the day of service) within which to answer or plead. This section shall be construed as giving an additional mode and manner of serving process and as not affecting the validity of any other valid service.
1. It is the contention of appellant here that the respondent should have complied with the terms and provisions of these sections, otherwise the constructive service is void. We conclude this contention by adopting the reasoning and conclusion set out by the federal court for this district in the case of King Tonopah Mining Co. v.
Lynch, in which, after extended consideration, it was held that these sections, inasmuch as they failed to provide a means whereby proper notice should be given to a party defendant, did not constitute due process of law. (King Tonopah Mining Co. v. Lynch, 232 Fed. 485.)
2. In this instance the plaintiff, respondent here, sought to obtain service by publication; and for the validity of the constructive service here relied on, the respondent contends that he has complied with sections 5026 and 5027, Revised Laws, the same being sections 84 and 85 of our civil practice act, and reading as follows:
Sec. 84. When the person on whom the service is to be made resides out of the state, or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself to avoid the service of summons, and the fact shall appear by affidavit, to the satisfaction of the court or judge thereof, and it shall appear, either by affidavit or by a verified complaint on file, that a cause of action exists against the defendant in respect to whom the service is to be made or that he is a ...