dissenting: Tbis is an action for damages for personal injuries. Tbe defendant entered a special appearance and moved to strike out tbe return of tbe service of tbe summons and dismiss tbe action, for tbe reason tbat “tbe defendant is a foreign corporation, not doing business in North Carolina and not domesticated, and bas no agent upon wbom service can be made, and tbe service is invalid and does not amount to due process of law.” Tbe motion was overruled, and tbe defendant excepted. Tbe defendant tben answered, and tbe cause was tried upon its merits. From tbe verdict and judgment tbe defendant appealed.
Tbe court found as a fact tbat “tbe defendant is a Yirginia corporation and did not bave at tbe commencement of tbis action, and bas not now, any office or place of business in tbis State, and bas never engaged in business bere; tbat it bas never bad a process agent in tbis State nor been domesticated bere; tbat T. B. Fitzgerald, upon wbom tbe summons was served, is a director of tbe defendant company and is a resident of tbis State, but be was not at tbe time of tbe service nor at any time prior thereto transacting tbe business of tbe company and held no office therein other than tbat of director, and tbat tbe defendant bas no property in tbis State.”
For tbe validity of such service tbe plaintiff relies upon Cunningham v. Express Co., 67 N. C., 426, and several cases decided since, which, he says, sustain tbat contention. But in Conley v. Mathieson Alkali Works, 190 U. S., it was held tbat: “Service in New York of a summons upon a director of a foreign corporation who resides in New York is not sufficient to bring tbe corporation into court where, at tbe time of service, tbe corporation was not doing business in tbe State of New York.”
"We may add to tbe case just cited, which seems to be a conclusive authority, tbe following, which are just as much in *169point: Mutual Life Association, v. McDonough, 204 U. S., 8 (51 L. Ed., 345); Kendall v. Automatic Loom Co., 198 U. S., 477 (49 L. Ed., 1133); Goldey v. Morning News (Gray, J.), 156 U. S., 518 (39 L. Ed., 517); Conley v. Alkali Works, 190 U. S., 406 (47 L. Ed., 1113); Barrow St. Co. v. Kane, 170 U. S., 100 (42 L. Ed., 964) Ins. Co. v. Sprattley (Peckham, J.), 172 U. S., 602 (43 L. Ed., 569); St. Clair v. Cox, 106 U. S., 350 (27 L. Ed., 222); Construction Co. v. Fitzgerald, 137 U. S., 98 (34 L. Ed., 608); Steamship Co. v. Kane, 170 U. S., 100 (42 L. Ed., 964); Eldred v. Am. Pal. Car Co., 103 Fed. Rep., 209.
In deference to these decisions of the highest court, we should hold and adjudge that the action be dismissed, as the cases are, at least substantially, alike in their facts.
Except in this State, the cases where it has been held that the service upon an officer of a nonresident corporation in a State other than that of its residence is sufficient, it appeared that he was transacting business of the corporation or there was some other fact or circumstance which implied authority to receive service. It would seem to be at least fair and just that the officer upon whom service is made should be under some legal duty to make known the fact of service to the corporation, and not merely under a moral obligation to do so, or by charging him with the transaction of business in the State of service the corporation should thereby have made him, at least impliedly, its representative in that State, under its laws, whose protection it has enjoyed, and thereby subjected itself to binding service upon him.
BbowN, J., concurs in this dissent.