3 Ala. 151 (Ala. 1841), Lyon v. Lorant

Citation3 Ala. 151
Opinion JudgeORMOND, J.
Party NameLYON, et als. v. LORANT & KREBS, ADM'RS.
AttorneyCAMPBELL, for the plaintiff in error. DUNN, contra.
CourtSupreme Court of Alabama

Page 151

3 Ala. 151 (Ala. 1841)

LYON, et als.

v.

LORANT & KREBS, ADM'RS.

Supreme Court of Alabama

June Term, 1841

THIS was a bill in chancery, filed by the defendants in error, against James G. Lyon, Samuel H. Garrow, and the Mayor and Aldermen of the city of Mobile, praying the foreclosure of a mortgage. The sheriff returned on the subp na, that he had served it on Lyon & Garrow and H. Chamberlaine, Esq. Mayor, for the Mayor and Aldermen of the city of Mobile.--The defendants failing to appear, a judgment pro confesso, was entered, and upon the report of the master, a decree of foreclosure, and sale of the premises was decreed. From which the defendants prosecute this writ of error, and assign for error, that there is no proof in the record that H. Chamberlaine is Mayor of the city of Mobile, and therefore, the Mayor and Aldermen of the city of Mobile, were not before the Court.

CAMPBELL, for the plaintiff in error.

DUNN, contra.

ORMOND, J.

The objection to the decree is, that it is founded on a decree pro confesso, for a failure to answer the bill, and that there is no evidence in the record, that the Mayor and Aldermen of the city of Mobile, who are parties to the bill, and against whom there is a decree, had notice of the proceeding by service of subp na. The only evidence that they were so served with subp na, is the return of the sheriff that it was executed by leaving a copy of the bill with H. Chamberlaine, Esq. Mayor, for the Mayor and Aldermen of the city of Mobile.

In the case of Walker v. Hallett, 1 Ala. Rep. N. S. 379, we held, that when a Bank was a party defendant to a bill, service of the subp na on its President, would be notice to the corporation, of the pendency of the suit. So there can be no doubt that the subp na in this case might have been executed on the Mayor of the city, as its executive officer. It does not, however, appear from the record, who is the Mayor, except from the return of the sheriffs, which cannot be considered evidence of that fact, but as the corporation did not appear to conclude its rights by affecting it with notice, it should have been proved, that the person on whom the process was served, was the Mayor of the city.

The decree made in the case, affects the interests of the corporation, and as it has not appeared, the necessary proof must be made to show that it has been cited to appear. For this error, the decree must be reversed, and the cause...

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