American Bonding Co. of Baltimore City v. New York & Mexican Whiting Co.
| Citation | 66 So. 847,11 Ala.App. 578 |
| Decision Date | 15 December 1914 |
| Docket Number | 138 |
| Parties | AMERICAN BONDING CO. OF BALTIMORE CITY et al. v. NEW YORK & MEXICAN WHITING CO. |
| Court | Alabama Court of Appeals |
Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.
Action by the New York & Mexican Whiting Company against the Mobile Towing & Wrecking Company, and O.B. Lyons, and the American Bonding Company of Baltimore City. Judgment by default, and Lyons and the Bonding Company appeal. Affirmed.
The action is for damages to a certain loading platform belonging to plaintiff which was berthed at Mobile, Ala., between two certain piers or wharves, and that the Mobile Towing & Wrecking Company furnished the tug and crew which shifted the vessel from its said berth; that Lyons was deputy harbor master for the port of Mobile, and superintended the shifting of said vessel; that under section 4909, Code 1907, he filed his official bond with the American Bonding Company of Baltimore as sureties. The complaint then proceeds to seek damages for certain dereliction of duty of said Lyons, and of the tug and crew furnished by the other defendant by which the vessel of plaintiff was damaged, and also an elevated unloading platform belonging to plaintiff. The judgment recites as follows:
This day came plaintiff by its attorneys, and it being proven to the court that service was had on defendant the American Bonding Company of Baltimore City, a corporation, by service on Beverly R. Wilson, one of the firm of W.K.P. Wilson & Son as agents of the defendant the American Bonding Company of Baltimore City, a corporation, and that said Beverly R Wilson, was a member of the firm of W.K.P. Wilson & Son, and also that W.K.P. Wilson & Son were the agents of the defendant the American Bonding Company of Baltimore City, a corporation, at the time of the service of the complaint and summons in this cause on said Beverly R. Wilson, and it being further proven to the court that service was had in this cause on Harry T. Hartwell, as the secretary of defendant Mobile Towing & Wrecking Company, a corporation, and that said Harry T. Hartwell was the secretary of the defendant Mobile Towing & Wrecking Company, a corporation, at the time of the service on him of the complaint and summons in this cause; and all defendants being called but coming not and failing to appear, plead, or otherwise answer plaintiff's complaint, and being wholly in default, and no trial by jury having been demanded by plaintiff this cause is tried by the court without the intervention of a jury, and the court, after hearing the evidence, renders judgment for plaintiff against defendant for the sum of $250.
The sheriff's return is as follows:
Received June 6, 1913, and on June 7, 1913, I served copies of within complaint and summons on B.R. Wilson, one of the firm of W.K.P. Wilson & Son, agents for the American Bonding Company of Baltimore City, a corporation, and on Harry T. Hartwell, secretary of the Mobile Towing & Wrecking Company, a corporation, and on June 9, 1913, I served a copy of the within complaint and summons on O.B. Lyons.
Stevens, McCorvey & Dean, of Mobile, for appellants.
Yerger & Foster, of Mobile, for appellee.
On appeal in a civil action, to sustain the jurisdiction of a trial court to render a personal judgment, two things are essential: (1) The court must have acquired jurisdiction of the person of the defendant by due service of process or by general appearance; (2) the complaint must state a substantial cause of action conferring upon the court jurisdiction of the subject-matter, and the judgment must be responsive to the complaint. Sweeney v. Tritsch, 151 Ala. 242, 44 So. 184; Kirkland v. Pilcher, 174 Ala 170, 57 So. 46.
This appeal is prosecuted by the American Bonding Company of Baltimore City from a judgment by default against the Mobile Towing & Wrecking Company, O.B. Lyons, and the appellant; and by the only assignment of error in the record it insists that neither of these two prerequisites to the jurisdiction of the trial court is shown by the record.
The suit was commenced on the 6th day of June, 1913, by the issuance of a summons and complaint, and the sheriff's return thereon is as follows:
"Received June 6th, 1913, & on June 7th, 1913, I served copies of within complaint & summons on B.R. Wilson, one of firm of W.K.P. Wilson & Son agents the American Bonding Company of Baltimore City, a corporation, & on Harry T. Hartwell, secretary Mobile Towing & Wrecking Company, a corporation & on June 9th, 1913, I served a copy of within complaint & summons on O.B. Lyons."
The judgment entry contains the following:
"This day came the plaintiff by its attorneys, and it being proven to the court that service was had on the defendant the American Bonding Company of Baltimore City, a corporation, by service on Beverly R. Wilson, one of the firm of W.K.P. Wilson & Son, as agents of the defendant the American Bonding Company of Baltimore City, a corporation, and that said Beverly R. Wilson was a member of the firm of W.K.P. Wilson & Son and also that W.K.P. Wilson and son were the agents of the defendant the American Bonding Company of Baltimore City, a corporation, at the time of the service of the complaint and summons in this cause on said Beverly R. Wilson."
The appellant does not question the sufficiency of the recitals in the judgment showing that proof was made as to the agency of W.K.P. Wilson & Son, and that Beverly R. Wilson, upon whom service of process was made, was a member of that firm and an agent of the appellant; nor is there any question as to the sufficiency of the evidence offered to that end; but appellant insists that the sheriff's return itself is not sufficient to authorize proof to be made that said Beverly R. Wilson was such agent. Appellant states its contention in brief as follows:
Section 5303 of the Code of 1907 provides:
"When the suit is against a corporation the summons may be executed by the delivery of a copy of the summons and complaint to the president or other head thereof, secretary, cashier, station agent, or any other agent thereof."
It has long been the settled rule in this state that, to authorize the rendition of judgment by default against a corporation, the record must show that proof was made to the court that the person on whom the process was served was, at the time of the service, an officer or agent of the defendant upon whom process could be legally served. Roman v. Morgan, 162 Ala. 133, 50 So. 273; Planters' & Merchants' Bank of Huntsville v. Walker, Minor, 391; Hoffman, Ahlers & Co. v. Ala. D. & F. Co., 124 Ala. 542, 27 So. 485; Manhattan Fire Ins. Co. v. Fowler, 76 Ala. 372; Oxanna Bldg. Ass'n v. Agee, 99 Ala. 571, 13 So. 279. And likewise it is no part of the official duty of the sheriff to certify in his return the relation the person upon whom he makes service of process sustains to the corporation. No matter what the return states in this respect, the return of the sheriff standing alone will not support a judgment by default. Planters' & Merchants' Bank of Huntsville v. Walker, supra; Roman v. Morgan, supra; Lyon v. Lorant & Krebs, 3 Ala. 151; W. & C.R.R. Co. v. Cole, 6 Ala. 655; Oxford Iron Co. v. Spradley, 42 Ala. 24; Independent Pub. Co. v. American Press Association, 102 Ala. 475, 15 So. 947. It being no part of the sheriff's official duty to make this statement, we grant the contention of the appellant that the statement in the sheriff's return immediately following the name of B.R. Wilson, to wit, "one of firm of W.K.P. Wilson & Son agents the American Bonding Company of Baltimore City, a corporation,' is merely descriptio personae. Hoffman, Ahlers & Co. v. Ala. D. & F. Co., 124 Ala. 542, 27 So. 485. In other words, this statement in the sheriff's return is merely surplusage, and adds no force to the return. It does not follow, however, that the judgment of the law and equity court must be reversed. It is not the duty of the sheriff to state in his return, but of the court, before the rendition of the judgment, to require proof to be made, that the person named in the sheriff's return was, at the time of such service, an agent of the corporation upon whom service could be legally made, and the record in this case shows that such proof was made. Roman v. Morgan, supra; Planters' & Merchants' Bank of Huntsville v. Walker, Minor, 391; Boyett v. Frankfort Chair Co., 152 Ala. 317, 44 So. 546.
Section 4143 of the Code of 1907 provides:
"No judgment can be arrested, annulled, or set aside, for any matter not previously objected to, if the complaint contain a substantial cause of action."
If the complaint in this case contained a substantial cause of action, and the judgment of the court is responsive to the complaint, the appellant cannot complain of errors or defects in the complaint which would have subjected it to demurrer. Stewart v. Goode et al., 29 Ala. 476; Kyle v Caravello, 103 Ala. 153, 15 So. 527; Walker v. Mobile Marine D. & Mutual Ins. Co., 31 Ala. 530; Harris v. Plant & Co., 31 Ala. 644; Childress et al. v....
To continue reading
Request your trial