Independent Pub. Co. v. American Press Ass'n

• Decision Date: 14 February 1894
• Citation: 102 Ala. 475,15 So. 947
• Court: Alabama Supreme Court
• Parties: INDEPENDENT PUB. CO. v. AMERICAN PRESS ASS'N. [1]

15 So. 947

102 Ala. 475

INDEPENDENT PUB. CO. v. AMERICAN PRESS ASS'N. ^[1]

Supreme Court of Alabama

February 14, 1894

Appeal from circuit court, Madison county; H. C. Speake, Judge.

Petition by the Independent Publishing Company for a writ of certiorari to review the proceedings of a justice of the peace in rendering judgment by default against petitioner and in favor of the American Press Association. From a judgment sustaining a motion to dismiss the writ theretofore issued, petitioner appeals. Reversed and rendered.

On April 4, 1888, the appellant in this case, the Independent Publishing Company, filed the following petition, addressed to the judge of probate of Madison county: "Your petitioner, the Independent Publishing Company, a corporation duly incorporated under the laws of the state of Alabama respectfully shows that on the 23d day of March, 1888, a judgment was rendered against your petitioner in a certain cause, wherein the American Press Association is plaintiff and your petitioner is defendant, for the sum of ninety-one and 80-100 dollars debt, and two and 35-100 dollars costs before Robert W. Figg, a justice of the peace in and for said county and state. Petitioner avers that said judgment was rendered by default, and without any proof of service upon said corporation, as the law directs and requires; and petitioner avers that it did not enter any appearance in said cause by attorney or otherwise; and petitioner further avers that no summons was served upon any officer or agent of said company, as required by law. A copy of said judgment entry is herewith filed, marked 'Exhibit A,' and prayed to be taken and considered as part of this petition. Petitioner avers that execution has been issued on said alleged judgment, and levied upon its property; and that after the levy of said execution, and on the 30th day of March, 1888, it filed the following motion in said cause, limiting its appearance therein for the purpose of said motion, viz.: "The American Press Association v. Independent Publishing Company. In Justice's Court, Robt. W. Figg, Esqr., Madison Co., Ala. Comes the defendant, and moves the court to set aside the judgment heretofore rendered in this cause, and, for grounds of this motion, states that said judgment was by default, and no proof was made of service of the process, and that, therefore, said judgment is void. Said judgment was by default, and was entered and recorded without proof being made that the person upon whom the summons and complaint was served was at the time of its service such officer or agent of said company as process could be served upon, wherefore said judgment is void. Humes, Walker, Sheffey & Gordon, Attorneys for Defendant.' Said motion was on the same day denied and overruled; and plaintiff avers that it has a clear legal right to have said judgment set aside, and tried in said justice's court; and plaintiff avers that it has no other adequate legal remedy by which to obtain said clear legal right except by the common-law writ of certiorari; and petitioner avers that said judgment so rendered is absolutely null and void. The premises considered, your petitioner prays that said American Press Association be made a party defendant hereto, and that, to this end, subpoena and all other needful process issue to it; that said Robt. W. Figg, justice of the peace, as aforesaid, be required to send up to the circuit court of said county all the records, papers, and proceedings in said cause, and that he be required, commanded, and directed to abstain from all further proceedings therein until the further order of said circuit court; and your petitioner prays that said Isham J. Watkins, constable as aforesaid, be commanded and directed to abstain from all further proceedings in said cause until the further orders and directions of said court; and your petitioner prays that upon the hearing of this petition, that said judgment be vacated, set aside, and held for naught, and be declared as absolutely null and void; and petitioner prays for such other, further, and different relief as the facts and equities of the case may require." In response to this petition, the probate judge ordered that, upon the petitioner's entering into a bond in the sum of $188.30, a writ of certiorari issue, in accordance with the prayer of the petition. The bond was duly executed, and the writ of certiorari was issued and executed upon the said Robert W. Figg, justice of the peace. The American Press Association moved the court to dismiss and quash the writ of certiorari, which had been granted, on the following grounds: "(1) Because no notice was given of the application for said writ of certiorari to the American Press Association or attorney; (2) because said writ of certiorari was granted in a case not authorized by law; (3) because the Independent Publishing Company was represented by counsel on the day set for the hearing of said cause in the justice's court, applied for a continuance of the cause, which was denied by the court; (4) because the said Independent Publishing Company had the right of appeal from said judgment; (5) because service was made on R. E. Pettus, the president of said Independent Publishing Company; (6) because there are no errors of law apparent on the face of the record, which require this court to correct." The cause was submitted to the court on this motion, together with the return of the justice of the peace to the writ of certiorari, which included the summons and complaint, with the indorsement by the constable thereon, the judgment rendered, and the motion made by the defendant to vacate and set aside said judgment, and the transcript of the proceedings in the justice's court. The court granted the motion, and ordered the certiorari dismissed, and rendered judgment against the defendant and the sureties on the certiorari bond. The present appeal is prosecuted by the Independent Publishing Company, and the judgment of the court in dismissing the certiorari is assigned as error.

Humes, Sheffey & Speake, for appellant.

William Richardson, for appellee.

STONE C.J.

The American Press Association brought suit against the appellant, before a justice of the peace, on a money demand less than $100. The suit was instituted by summons and complaint, in statutory form, as prescribed in this state. There was a return indorsed on the summons in these words: "Executed by summons on Mar. 15, 1888. [Signed] J. Watkins, Con." Immediately below the signature of the constable we find these words: "Summon R. E. Pettus, W. E. Pettus, and M. O. Pettus, incorporators." What these words import is not clearly shown. It is possible, if not probable, that these were the persons on one or more of whom service was directed to be made. We cannot, in the teeth of the return, suppose that service was not made on some person. The justice rendered judgment by default against the Independent Publishing Company, but he made no note or memorandum showing that any proof was made before him as to how or on whom service was made. The defendant being a corporation, it follows that service could be made only on some officer or agent of the corporation, as prescribed in section 2657 of the Code of 1886. When a corporation is the party sued, there cannot be a literal service of process on the defendant. Only some officer or agent can be summoned. Id. And, inasmuch as the court cannot judicially know who are officers or agents of the corporation, the return of the officer, "Executed" or "Served," in such case, does not per se prove that service has been properly perfected. There must, in addition to the return of service, be independent proof made that the person served was "president," "secretary," or "agent," etc., as the case may be, to authorize a judgment by default. Earbee v. Ware, 9 Port. (Ala.) 291; Norwood v. Riddle, 1 Ala. 195; Lyon v. Lorant, 3 Ala. 151; Railroad Co. v. Cole, 6 Ala. 655; Railroad Co. v. Whorley, 74 Ala. 264; Insurance Co. v. Fowler, 76 Ala. 372; Railroad Co. v. Carr, Id. 388.

The cases we have cited establish two propositions by the uniform rulings of this court: First. That, in suits against corporations, it is error to render judgment by default against the corporation on service effected on a person as officer or agent of the corporation without first making proof that he was such officer or agent. In the absence of such proof, it is not shown that service was made on any person the law authorizes to receive service or to represent the corporation. Second. A judgment rendered without such proof, though irregular and reversible, is not on that account void. It is so far a judgment that an appeal will lie to review it. That is shown by the cases cited above, to which others might be added. And in those cases where the requisite proof was not shown to have been made we did not pronounce the proceedings void; we did not quash the proceedings. We reversed and remanded the cases, that a further trial might be had. If, on such remandment, the necessary proof should be made, and judgment again rendered, we apprehend no one would contend that such judgment would be void, or even reversible. The very remandment of the cases for further trial was the equivalent of an affirmation by this court that the proceedings were not void. Void proceedings are never remanded for further trial.

Another argument-possibly a stronger one-against the contention that the judgment we are considering is void: Even after appeals to this court from judgments of the lower courts, if there has been a failure to make proof of service of process in cases requiring such proof, the courts appealed from have permitted proof of service to be made after the appeal was taken, and have amended the judgments nunc pro tunc,...