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A railroad company may be sued in any county through or into which its road passes, without regard to nature of cause of action. Railway Co. v. Jewett, 37 Ohio St. 649. And it is sufficient if the road be held by lease. Ry. Co. v. McLean, i C. C. 112; affirmed, 19 B. 217.
This section relates solely to the jurisdiction of the person; it is not necessary that the petition should state that its road passes through or into the county where the action is brought. R. R. Co. v. Morey, 47 Ohio St. 207.
The company may be served in a county through which its line does not run when properly joined as a co-defendant. B. & 0. R. R. Co. v. McPeek, 16 C. C. 87.
$ 5028. Against turnpike companies
An action other than one of those mentioned in the first four sections of this chapter, against a turnpike road company, may be brought in any county in which any part of the road lies.
51 V. 57, S 50; S. & C. 960.
$ 5029. When this chapter does not apply
When the charter of a corporation created under the laws of this state, prescribes the place where suit must be brought, that provision shall govern. 51 V. 57, § 51; S. & C. 960.
$ 5030. Against nonresident
An action other than one of those mentioned in the first four sections of this chapter, against a nonsident of this state, or a foreign corporation, may be brought in any county in which there is property of, or debts owing to, the defendant, or where such defendant is found; but if the defendant is a foreign insurance company, the action may be brought in a county where the cause, or some part thereof, arose.
S. & C. 960. The words “foreign corporation," in attachment cases, under section 28 of the justices' code of 1853, mean foreign to the state, not foreign to the county. Boley v. Ohio L. Ins. & T. Co., 12 Ohio St. 139.
The court can acquire no jurisdiction against a nonresident of the state, unless he be personally served or appear, except the action be one in which service by publication can be made. Williams v. Welton, 28 Ohio St. 451.
$ 5033. Change of venue in suit by or against a corpora
tion-Cost of summoning jury and jury fees
How paid When a corporation having more than fifty stockholders is a party in an action pending in a county in which the corporation keeps its principal office, or transacts its principal business, if the
opposite party make affidavit that he cannot, as he believes, have a fair and impartial trial in that county, and his application is sustained by the several affidavits of five credible persons residing in such county, the court shall change the venue to the adjoining county most convenient for both parties; and the cost of summoning and impaneling a jury, and the fees of said jury sitting in the trial of the case in the court of the county to which the venue is changed, shall be allowed and paid by the commissioners of the county from which said action is sent. 378.
The statute is constitutional. Snell v. St. Ry. Co., 42 B. 44, reversing 16 C. C. 633. Grounds for belief need not be given in affidavits, and affiants presumed credible unless attacked. Id. See also Sauer v. St. Ry. Co., 4 N. P. 252 (Sup. Ct. Cin); Stermer v. St. Ry. Co., 5 N. P. 419 (Sup. Ct. Cin.), and mem. in 41 B. 209.
The court is clothed with a judicial discretion, and mandamus will not lie to compel the judge to transfer the action. State v. Wilson, 12 C. C. 636.
94 0. L.
$ 5041. How summons served upon corporation
A summons against a corporation may be served upon the president, mayor, chairman or president of the board of directors or trustees, or other chief officer; or, if its chief officer be not found in the county, upon its cashier, treasurer, secretary, clerk, or managing agent; or, if none of the aforesaid officers can be found, by a copy left at the office or usual place of business of such corporation, with the person having charge thereof; and if such corporation is a railroad company, whether foreign or created under the laws of this state, and whether the charter thereof describes the manner and place, or either, of service of process thereon, the summons may be served upon any regular ticket or freight agent thereof; or, if there is no such agent. then upon any conductor, in any county in this state, in which such railroad is located, or through which it passes; but if the defendant is an incorporated river transportation company, whether organized uinder the laws of this or another state, the service of a summons may be upon the master, or other chief officer, of any of its steamboats or other craft, or upon any of its authorized ticket or freight agents, at any port where it transacts business. 65 v. 116, $ 66; 76 v. 145, $ 10; 94 O. L. 273.
$ 5042. How served upon an insurance company
When the defendant is an insurance company, and the action is brought in a county in which there is an agency thereof, the service may
the chief officer of such agency. 51 v. 57, 5 67; 94 O. L. 273.
$ 5043. On foreign corporation
When the defendant is a foreign corporation, having a managing agent in this state, the service may be upon such agent. 51 v. 57, § 68; 94 O. L. 274.
$ 5044a. How served upon foreign corporation in hands
of receiverWhen the property in this state of any foreign corporation, railroad or otherwise, is in the possession or control of a receiver appointed by any court, state or federal, at the commencement of any action against said corporation, summons may be served upon any agent of the receiver upon whom valid service could be made under any other provision of this chapter, if the agent was the agent of the corporation itself. 93 O. L. 413.
When service is made upon a subordinate officer, the return must show that no higher officer could be found; if upon a person having charge, that 10 chief or subordinate officer could be found. Fee v. Big Sand. Iron Co., 13 Ohio St. 563. Service upon the members of the last acting board of directors of a defunct corporation is sufficient. Warner v. Callender, 20 Ohio St. 190. Service may be made on a regular ticket agent of a railroad in a county through which its trains run, though on a leased road. Ry. Co. v. McLean, i C. C. 112; affirmed, 19 B. 217. But service for a foreign railroad company cannot be made upon a mere traveling solicitor of business. Wilson v. Nor. Pac. R. R. Co. (Cin. Sup'r Ct.), 16 B. 6. See Railroad Co. v. Emery, 17 B. 154, as to service in another state upon president of Ohio corporation.
Joint stock company, under the laws of New York, having substantially the character and power of a corporation, may be served with summons in this state in same manner as corporation. Express Co. v. State, 55 Ohio St. 69.
Service for railway company cannot be made on ticket agent of receiver. Collins v. R. R. Co., 7 N. P. 270 (C. P.)
Service upon an insurance company may be made on local agent under & 5046, and on managing agent under 2 5045, these sections being cumulative in that respect. Householder v. Kansas Ass'n, 6 N. P. 520 (C. P.)
A local agent, who kept an office where he received and forwarded packages for the company, and did all the business incident thereto, was held a “managing agent." Amer. Express Co. v. Johnson, 17 Ohio St. 641.
$ 5052a. Service when officer, etc., is non-resident
Whenever it shall be made to appear to the satisfaction of any court of record in this state, in any action now pending, or hereafter to be brought therein, that any one named as a party defendant is a corporation organized under the laws of the State of Ohio, owning or otherwise interested in real or personal property within the jurisdiction of such court, is a proper party therein, and that there is no officer, agent, or director of such corporation within the State of Ohio upon whom service of summons in said action can be made, it shall be lawful for said court to authorize any person residing in or out of the state to make service of summons on such corporation by delivering to the last known president, or other chief officer or director of such corporation, a copy of the summons therein, and the person making such service shall make affidavit thereto, and forthwith make return to the clerk. That whenever service of summons shall have been so made, the said service shall have the same effect, and shall be taken and held as if made upon said corporation in this state by personal service of such summons upon the proper officer, agent, or director of such corporation upon whom a service of summons is now authorized by law to be made in other cases. 86 0.
$ 5587. When receiver appointed
A receiver may be appointed by the supreme court or a judge thereof, the circuit court or a judge thereof in his circuit, the common pleas court or a judge thereof in his district, or the probate court, in causes pending in such courts respectively, in the following cases:
1. In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund to his claim, or between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff, or of any party whose right to or interest in the property or fund, or the proceeds thereof, is probable, and when it is shown that the property or fund is in danger of being lost, removed, or materially injured.
2. In an action by a mortgagee, for the foreclosure of his mortgage, and sale of the mortgaged property, where it appears that the mortgaged property is in danger of being lost, removed, or materially injured, or that the condition of the mortgage has not been perforined, and the property is propably insufficient to discharge the mortgage debt.
3. After judgment, to carry the judgment into effect.
4. After judgment, to dispose of the property according to the judgment, or to preserve it during the pendency of an appeal, or when an execution has been returned unsatisfied, and the judgment debtor refuses to apply the property in satisfaction of the judgment.
5. In the cases provided in this title, and by special statutes, when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights.
6. In all other cases where receivers have heretofore been appointed by the usages of equity. 82 0. L. 35.
Appointment of receiver to take possession of defendant's property cannot be made without notice, unless delay will result in irreparable loss. Rail. way Co. v. Jewett, 37 Ohio St. 649.
In suit by receiver of insolvent corporation on subscription for increase of stock, court may direct collection only of subscriber's proportion necessary to discharge debts. Clarke v. Thomas, 34 Ohio St. 46.
The appointment of a receiver is an abuse of discretion when the sole object of the suit is to wind up the affairs of corporation, and it appears that full relief may be afforded by injunction. Railroad Company v. Duckworth, 2 C. C. 518; affirmed in 21 B. 36. See also Straman v. North Balt. Waterworks Co., 8 C. C. 89, and Goebel v. Herancourt Brewing Co., 7 N. P. 230 (Sup. Ct. Cin.)
See note to Bacon et al. v. N. W. Stone Co., under section 5651.
Where surety for an insolvent corporation brings suit against it, under section 5845, to compel it to pay the indebtedness upon which he is surety by subjecting its property, the appointment of a receiver is authorized by section 5587. Barbour v. Nat. Ex. Bank, 45 Ohio St. 133.
Appointment of receiver is not authorized merely because creditors are about to bring action to enforce their claims; nor can a stockholder or director be appointed when circumstances do not amount to consent to appointment of such person. Bank v. Lakeside Co., 19 C. C. 365.
DISSOLUTION OF CORPORATIONS.