On Petition for Rehearing

Strutz, Judge.

The respondent has filed a petition for rehearing in which he raises two issues:

First, did this court properly apply the law in determining that bringing an action for the collection of a debt in North Dakota did not constitute the doing of business in this State within the statutory provisions permitting service of process on a foreign corporation which was doing business in the State without a certificate of authority?

Second, did this court erroneously construe the liability of the sheriff in the attachment proceedings for failure to file an inventory in such proceedings within the twenty-day limitation?

Issue No. 1

Counsel for Renner argues that the enormous growth of corporate business throughout the United States has brought with it the recognition by the courts of the need to afford protection to local residents in dealings with nonresident corporations, citing Section 10-22-01 of the North Dakota Century Code. This section provides that no foreign corporation shall have the right to transact business within the State until it shall have secured a certificate of authority to do so.

However, we do not believe that coming into the State to collect a claim which a foreign corporation might have against a resident of Montana constitutes "doing business" in this State. The claim upon which the foreign corporation brought such suit did not arise out of business done within the State. The suit was brought in North Dakota only because the nonresident debtor had property in this State, which the creditor attempted to attach.

Service in the case of Renner v. J. Cruman Steel Company was attempted by filling an affidavit for publication alleging that the defendant foreign corporation had[147 N.W.2d 674]

property in the State. But no property was, in fact, found or, in any event, proceeded against. The judgment which was recovered was a personal judgment against the corporation itself. The plaintiff argues that the defendant was doing business within the State and that service was made under the provisions of Section 10-22-10, North Dakota Century Code. That section provides that, whenever a claim shall arise out of "business transacted" in this State by a foreign corporation which is transacting business without a certificate of authority, service of process may be made in the following manner:

By serving any person who shall be found in this State acting as an agent of or doing business for such corporation; or

By mailing a copy of such process to the defendant corporation by registered or certified mail, addressed to it at its last-known postoffice address.

When service in this case was attempted by serving the attorneys for the defendant corporation in the attachment suit, presumably such attorneys were served as agents of the defendant nonresident corporation. Service was further attempted by serving the defendant corporation by ordinary mail. There is no showing that such service was by registered or certified mail, as required by Section 10-22-10, North Dakota Century Code.

We hold that neither attempted service was good. An attorney who brings a lawsuit under the circumstances found in the attachment suit brought against Renner for a foreign corporation which is not authorized to do business in this State is not an agent of such corporation or doing business for such foreign corporation so that service of process may be made upon him. Counsel says that J. Gruman Steel Company had been doing business in this State for some time. But no service was attempted upon any person found in the State acting as agent of or doing business for such corporation.

Issue No. 2

The second issue raised on the petition for rehearing is the liability of the sheriff to the attachment debtor for failure to file an inventory in the attachment proceedings within the twenty-day limitation fixed by statute. This matter is, we believe, fully covered in our original opinion. We would only point out that, prior to the entry of the judgment in the attachment proceedings against Renner, which judgment was later declared to be void for failure of the sheriff to file an inventory within the period fixed by statue, the trial court specifically held that it did have jurisdiction to enter such judgment. In view of this fact, the sheriff would not be required to determine, contrary to the decision of the trail court, that the trial court was in error and therefore refuse to comply with the court's order. Where the court specifically states that it has jurisdiction and enters an order which the sheriff enforces, the sheriff will not be held liable if the court is in error in such determination.

The petition for rehearing is denied.

Alvin C. Strutz
Ralph J. Erickstad
Harvey B. Knudson