Palatine Ins. Co. v. Hill

• Citation: 121 So. 412,219 Ala. 123
• Decision Date: 17 January 1929
• Docket Number: 401,4 Div. 398
• Parties: PALATINE INS. CO. v. HILL ET AL.
• Court: Supreme Court of Alabama

121 So. 412

219 Ala. 123

PALATINE INS. CO. v. HILL ET AL.

4 Div. 398, 401

Supreme Court of Alabama

January 17, 1929

Rehearing Denied March 28, 1929.

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Action by Roy O. Hill and another against the Palatine Insurance Company. From a judgment for plaintiffs, defendant appeals and applies for writ of mandamus. Judgment affirmed; mandamus denied.

Coleman Coleman, Spain & Stewart, of Birmingham, for appellant.

Farmer Merrill & Farmer, of Dothan, for appellees.

FOSTER J.

This was an action at law. Judgment by default was rendered against appellant, a corporation, upon a sheriff's return as follows: "Executed this the 13th day of December 1926, by leaving a copy of the within summons and complaint with E. M. Hightower as agent of the Palatine Insurance Company, Limited of London, England, defendant." Defendant appeals from this judgment, and insists that there was not sufficient return of service to justify a judgment by default. The judgment entry contains the following statement: "And it appearing to the court that the defendant has been duly served with copy of the summons and complaint in this cause," etc.

Section 9421 of the Code authorizes a summons to a corporation to be executed by the delivery of a copy thereof to the "president, or other head thereof, secretary, cashier, station agent or any other agent thereof." Such were the terms of section 5303 of the Code of 1907. By amendment of that section, enacted in 1915, an additional clause has been added, which is in effect that if the return shows that the officer or agent so served is such officer or agent, the return will be prima facie evidence thereof, and will support a judgment by default, without additional proof. The return in the instant case is not sufficient in its recitals to be treated as a statement of the fact of agency. Such has been held by this court in Farmers' State Bank v. Inman, 208 Ala. 281, 94 So. 105. The statute, as above pointed out, authorizes service upon an agent. It is not improper, therefore, in fact quite necessary, to show the name of the agent. When service is shown in the return to be upon an agent as such of defendant corporation, it is sufficient as a return. But with such a return, proof of the agency is necessary, for it does not state as a fact, or necessary inference, that he is an agent. In the case of Manhattan Fire Ins. Co. v. Fowler, 76 Ala. 372, the return was on "Ed Warren, agent of the Manhattan Ins. Co." It was held that the return with proof of the agency was sufficient. In the case of Wetumpka & C. R. R. Co. v. Cole, 6 Ala. 655, the service as shown on the return was on John Duncan, as president of the corporation. This return was not held insufficient, but proof that he was such officer was necessary. To the same effect are Independent Pub. Co. v. Am. Press. Ass'n, 102 Ala. 475, 15 So. 947, and Roman v. Morgan, 162 Ala. 133, 50 So. 273.

In the case of Roman v. Morgan, supra, the return under consideration showed service on "Ignatius Pollak as president of" the corporation. The judgment recited: "It being made to appear to the court that a summons requiring the defendant, the N. A. L. & I. Co. to appear and plead to or answer the bill of complaint in this cause within thirty days from the service of said summons upon it, was served upon it by the sheriff," etc. The question there was raised on collateral attack, and the presumption of the jurisdiction of the person prevailed on such attack. On direct attack, it was recognized that the record must show that proof was made to the court that the person on whom the process was served was at that time an officer or agent (unless now the return of the sheriff makes a statement to that effect). Oxanna v. Agee, 99 Ala. 571, 13 So. 279; Boyett v. Frankfort Chair Co., 152 Ala. 317, 44 So. 546; Sawyer v. Edwards, 200 Ala. 26, 75 So. 338.

From the foregoing discussion, it follows that the return was sufficient as such; but it did not state that the agent named was such agent when served, and the judgment did not show that proof of agency was made to the court, and was erroneous at the time the appeal was taken.

The judgment was rendered by default on March 2, 1927. An appeal was taken April 19, 1927. Motion was made by plaintiff on April 28, 1927 (joined in by the sheriff and his deputy who made the return, and also the sheriff in office when the motion was made) to permit an amendment of the return to be made so that it would recite that the person on whom the summons and complaint was served was the agent of the defendant at the time of such service. A bill of exceptions shows the proceedings on the motion. The proof without conflict showed that E. M. Hightower, the person named in the return as agent of defendant, was in fact such agent on the date of service as shown by the return, and that on such date the deputy sheriff served him with a copy of the summons and complaint; that said agent immediately sent same to the general agents of the defendant; that on the date of the return M. Tatum was sheriff, and H. C. Adams was his deputy, who served the process; that at the time the motion was made and heard the term of office of said Tatum had expired; and that he and his deputy are willing and offer to amend the return as prayed for in the motion, the court granted the motion and made an order permitting M. Tatum (former sheriff) to amend his return, in effect, to show that E. M. Hightower, on whom the return showed the summons and complaint was served, was the agent of defendant on the date of the service. Defendant excepted to this order of the court. Thereupon an amended return in accordance with said order was made over the signature of "M. Tatum, Sheriff, by H. C. Adams, D. S.," as of the date of December 13, 1926, the date of the

original return. All of such proceedings, having occurred prior to the preparation of the transcript to this court, are included and duly certified here. Appellant has presented a petition for mandamus to the presiding judge commanding a vacation of such order allowing the amendment. The judge has appeared and contests the right to mandamus.

The general rule has been well established in this court and elsewhere that, pending an appeal, a sheriff's return may be amended by him with the court's permission, and that such amended return will relate back to its original date, and, if sufficient, will sustain the judgment on the appeal which had been taken prior to the amendment. Hefflin v. McMinn, 2 Stew. 492, 20 Am. Dec. 58; Cullum v. Batre, 2 Ala. 415; Ware v. Brewer, 34 Ala. 114; Myers v. Conway, 90 Ala. 109, 7 So. 639; Seymour v. Thomas, etc., Co., 81 Ala. 250, 1 So. 45; 21 R. C. L. 1331; Phillips v. State, 162 Ala. 14, 50 So. 194; Wade v. Wade, 92 Or. 642, 176 P. 192, 178 P. 799, 182 P. 136, 7 A. L. R. 1143.

Appellant contends that the right does not exist in a former sheriff as to a return made by a deputy. The case of Knapp v. Wallace, 50 Or. 348, 92 P. 1054, 126 Am. St. Rep. 742, is cited to support this contention. In that case such an amendment was attempted by the ex-sheriff, not participated in by the deputy so far as the record shows. It is said the amendment can only be made "by the officer who served the process or in accordance with memoranda made by him. *** The ex-sheriff *** cannot be presumed to know what was done by his deputy in making a service; and, if the facts in such a case may be established from memoranda of the deputy, it must be upon proof to the court." It would seem in that case that the deputy who served the process and made the return did not, as he did here, join in the effort and offer to amend it. Emphasis is laid on that fact in that case, and also in Murfree on Sheriffs, § 876, cited in the opinion. Even then it is recognized that this may be done by the sheriff "in accordance with memoranda made by" the deputy, and upon proof to the court. There is also cited in the Oregon case that of O'Conner v. Wilson, 57 Ill. 226. There the deputy had died and left no memorandum, and the sheriff was not present when the service was made. Held the sheriff could not amend such return of the deputy. The case of County of La Salle v. Milligan, 143 Ill. 321, 32 N.E. 196, is also cited in the Oregon case, supra. It is there held that after the expiration of the term of office of the officer making the return, it may be amended within any reasonable time upon proper notice, but only by the officer who made the return.

Not in conflict with the holdings above noted, the Virginia Supreme Court, in Shenandoah Valley R. R. Co. v. Ashby, 86 Va. 232, 9 S.E. 1003, 19 Am. St. Rep. 898, has ruled that when such a return is made by the deputy...