Aetna Cas. & Sur. Co. v. Dobbs, 4170

• Decision Date: 26 May 1967
• Docket Number: No. 4170,4170
• Citation: 416 S.W.2d 869
• Parties: AETNA CASUALTY AND SURETY COMPANY, Appellant, v. Ida Scott DOBBS et al., Appellees. . Eastland
• Court: Texas Court of Appeals

Page 869

416 S.W.2d 869

AETNA CASUALTY AND SURETY COMPANY, Appellant, v. Ida Scott DOBBS et al., Appellees.

No. 4170.

Court of Civil Appeals of Texas.

Eastland.

May 26, 1967.

Lewright, Dyer & Redford, Cecil D. Redford, Dudley B. Foy, Jr., Corpus Christi, for appellant.

James DeAnda, Corpus Christi, for appellees.

GRISSOM, Chief Justice.

Ida Scott Dobbs and William E. Scott, individually and as representatives of the estate of Anna May Scott, deceased, sued Aetna Casualty and Surety Company. They alleged that the 'defendant is a foreign insurance company and the Commissioner of Insurance of the State of Texas is its attorney for service of legal process.' Citation was issued and directed to be served on Aetna Casualty and Surety Company 'by serving its attorney for service, the Commissioner of Insurance of the State of Texas.' The officer's return shows the citation was served on 'Aetna Casualty and Surety Company, by delivering to Clay Cotton, Insurance Commissioner State of Texas as agent for service.' The citation and the officer's return were filed with the Clerk on August 24, 1966. On September 14, 1966, the court rendered a default judgment against said insurance company for $14,933.00. It recited that the defendant, though duly served with process, wholly made default. Aetna Casualty and Surety Company did not appear in the trial court but it has timely removed the case to this court by petition for writ of error. Such procedure constitutes a direct attack on said judgment. Texaco, Inc. v. McEwe, Tex.Civ.App., 356 S .W.2d 809, 812.

Appellant says the essence of the Issues presented is the fundamental constitutional question of whether it can be deprived of its property on a record which does not show that it has been accorded due process of law. Absent valid service of process the court did not have jurisdiction to render a money judgment against appellant. Without such jurisdiction an award of appellant's money to appellee was made without due process of law. In Roberts v. Stockslager, 4 Tex. 307, 309, our Supreme Court held that the statutory provisions as to the mode of service and the fullness of the return were as plain as they were imperative; that the statutes prescribed the mode by which the court could acquire jurisdiction over the person of the defendant and, as this was necessary to give validity to its judgment, such regulations should be strictly enforced. It held that notice in the form prescribed by statute was essential to jurisdiction of the court and, where the defendant did not appear, it was the duty of the court to ascertain before proceeding with the case whether the defendant had been legally brought within judicial cognizance in relation to the subject matter pending before the court.

Appellant says that, because our State and Federal Constitutions make valid service of process prerequisite to validity of a state court judgment against a foreign corporation, Texas courts have been careful in scrutinizing such judgments to lay down fundamental safeguards to ensure that such defendants, who have suffered a default judgment to be rendered against them, be not deprived of their property without due process of law.

In McKanna v. Edgar, Tex.Civ.App., 388 S.W.2d 927, 928, our Supreme Court said that the established law in Texas required that the record affirmatively shows strict compliance with the mode of service provided by statute and that there were no presumptions of such service in a direct attack upon such a default judgment. It held that in such a case as this there were no inferences of the essential jurisdictional facts but that they must affirmatively appear on the face of the record and that the plaintiff had the burden of making sufficient allegations to bring such a defendant within the provisions of the statutes prescribing the method of service of process on it. It held that a return showing service on the Secretary of State could not supply the missing jurisdictional facts upon which such service must depend. The Supreme Court announced the rule that a plaintiff seeking to obtain service upon a non-resident defendant sufficient to support a default judgment must plead facts which show that such defendant is within the classification of non-residents upon which the statute authorizes service. Appellant says, and we think correctly, that such rule is a logical extension of the doctrine that in personam jurisdiction over a non-resident must affirmatively appear on the face of the record for a default judgment against him to stand on direct attack. The pleadings, citations and return must show a strict compliance with the mode of service provided by statute. The question is whether this record affirmatively shows that service has been had in strict accord with a state law providing therefor. Unless the record first affirmatively shows that the foreign corporation defendant is one upon whom the Legislature of Texas has authorized service of process, it cannot affirmatively show strict compliance with a statutory mode of service provided for such a defendant.

Appellant says the record is insufficient to support the default judgment in two respects, to-wit:

(1). It does not show the jurisdictional facts necessary to determine whether the Legislature had authorized service of process on this appellant and

(2). It does not affirmatively show that service was had in strict compliance with the mode provided by statute.

It further contends that jurisdiction not being apparent on the face of the record the default judgment cannot stand. In support thereof it cites Anglo Mexicana de Seguros, S.A. v. Elizondo, Tex.Civ.App., 405 S.W.2d 722, (Wr. ref. n.r.e.); McKanna v. Edgar, supra; State Mortgage Corporation v. Traylor, 120 Tex. 148, 36 S.W.2d 440 and Levy v. Roper, 113 Tex. 356, 256 S.W. 251. We sustain said contentions and the points under which they are presented.

There are several statutes providing for service on a foreign corporation which are not related to the business of such a corporation. There are articles of the Insurance Code fixing the mode of service on specific types of insurance companies. We think it is clear that appellees failed to allege jurisdictional facts requisite to an affirmative showing that any of such statutes authorized service on such a Company as the appellant or that there was compliance with the mode of service prescribed for it. Appellees did not allege or prove what statute fixed the mode of acquiring in personam jurisdiction over appellant, or that they complied therewith. Appellees alleged only that (a) the defendant was a foreign insurance company and that (b) the Commissioner of Insurance was its attorney for service of process. Citation was issued to be served upon Aetna Casualty and Surety Company 'by serving its attorney for service, the Commissioner of Insurance of the State of Texas.' The return shows service on 'Aetna Casualty and Surety Company, by delivering to Clay Cotton Insurance Commissioner State of Texas as agent for service.' No statute and no appointment of the named official is pointed out as making said official appellant's agent for service.

Article 3.65 of the Insurance Code, V.A.T.S. requires that any 'foreign company,' defined by Sec. 6 of Art. 3.01 of the Code as a foreign life, accident or health company, engaged in or desiring to do business in Texas, file a written power of attorney with the 'Board of Insurance Commissioners', appointing the Chairman of said Board as its agent for service. The Board of Insurance Commissioners was changed to State Board of Insurance by Article 1.02(a) and (c) of the Insurance Code. Appellees pointed out no statute giving the court jurisdiction to render a money judgment against appellant by service on the Commissioner of Insurance, nor do they show that such an appointment was actually made.

Appellees did not allege that Aetna Casualty and Surety Company was a foreign life, health or accident insurance company engaged in or desiring to do business in Texas. They did not allege that it had filed a written power of attorney with the State Board of Insurance appointing its Chairman as its agent for service of process. They failed to affirmatively show by either allegation or evidence that the Legislature granted any right of service of process on such a non-resident defendant as Aetna Casualty and Surety Company under any statute. Appellees had the burden of pleading and proving jurisdictional facts in order to confer jurisdiction over appellant. The Chairman of the State Board of Insurance required to be appointed by the 'foreign company' dealt with in Article 3.65 is a different person from 'the Commissioner of Insurance of the State of Texas', alleged by appellees to be appellant's 'attorney for service of process.' Article 1.02(d) of the...