Brotherhood of Railroad Trainmen v. Agnew

• Decision Date: 28 May 1934
• Docket Number: 31300
• Court: Mississippi Supreme Court
• Parties: BROTHERHOOD OF RAILROAD TRAINMEN v. AGNEW

155 So. 205

170 Miss. 604

BROTHERHOOD OF RAILROAD TRAINMEN v. AGNEW

No. 31300

Supreme Court of Mississippi

May 28, 1934

Division B

Suggestion Of Error Overruled September 11, 1934.

APPEAL from circuit court of Hinds county HON. W. H. POTTER, Judge.

Action by W. C. Agnew against the Brotherhood of Railroad Trainmen. From a judgment in favor of the plaintiff, the defendant appeals. Affirmed.

See also, 155 So. 204.

Affirmed.

Alexander, Alexander & Satterfield, of Jackson, for appellant.

The trial court had no jurisdiction over the defendant and the default judgment is void.

Article 14, sections 5231 and 5268, Code of 1930; Karges Furniture Co. v. Amalgamated Woodworkers' Union, 2 L. R. A. (N. S.) 788, 793.

It would seem to be sufficient to show that process was not served upon the statutory agent in this case. We believe there is no answer to this simple contention, since the statute makes no exception and is very particular to state the exclusive manner by which such society may be brought into court.

The plaintiff apparently out of a consciousness of his plight undertakes to make some alleged explanation in his default judgment as to why the statute was not followed. Such findings are wholly unwarranted as indeed was his attempt to go outside the record to explain his own default.

Watkins, etc., Co. v. Cincinnati Rubber Manufacturing Co., 96 Miss. 610, 52 So. 629; Eminent Household of Columbia Woodmen v. Lundy, 110 Miss. 881, 71 So. 16.

The theory behind all our statutes dealing with process against nonresident, is that everything possible must be done to insure notice to the nonresident.

Hirsch v. Kennington, 124 So. 345; Duchter v. Pizzutti, 276 U.S. 13, 72 L.Ed. 446; Sellers v. Powell, 152 So. 492.

The affidavit of J. E. Pierce upon whom service was attempted to be made shows that he did not communicate this fact to the appellant.

It has been held that certified copies of the appointment of process agent must be made a part of the record in cases of judgment by default.

Section 5246, Code of 1930; Universal Life Ins. Co. v. Catchings, 152 So. 817.

J. E. Pierce on whom service of process was attempted to be had, is not an agent for process for the appellant either in fact or in law.

Christian v. International Association of Machinists, 7 F.2d 481; Hirsch Bros. Co. v. Kennington, 124 So. 344; Grand International Brotherhood of L. E. v. Green, 89 So. 435; Grand Lodge Brotherhood of L. F. v. Cramer, 53 Ill.App. 578, 580; Southern Express Co. v. Craft, 43 Miss. 508; Betts v. Baxter, 58 Miss. 331; Joslin v. Coffin, 5 How. 539; Smith v. Cohen, 3 How. 35; Fatheree v. Long, 5 How. 664; Foster v. Simmons, 40 Miss. 586; Bustamente v. Boscher, 43 Miss. 175; Hammond v. Olive, 44 Miss. 546; Merritt v. White, 8 Ga. 438; Robinson v. Miller, 57 Miss. 238; Eskridge v. Jones, 1 Smedes & M. 596; Lea v. Iron Belt Mercantile Co., 8 L. R. A. (N. S.) 279; National Surety Co. v. Board of Supervisors, 120 Miss. 706; Continental Cas. Co. v. Gilmer, 111 So. 741.

In the absence of a certified copy of the instrument constituting and appointing the commissioner of insurance its "true and lawful attorney," there is no way by which the court could judicially know that the commissioner was authorized to acknowledge service.

Globe Rutgers Fire Ins. Co. v. Sayle, 107 Miss. 169, 65 So. 125.

The motion to vacate the judgment was proper and should have been sustained.

34 C. J. 270; Planters Lbr. Co. v. Sibley, 130 Miss. 26, 35, 93 So. 440; Lee v. Spikes, 145 Miss. 897; Benwood Iron Works v. Tappan, 56 Miss. 666; Joiner v. Bank, 71. Miss. 383; Surety Ins. Co. v. Treadwell, 113 Miss. 200, 201; Moore & Co. v. Hoskins, 66 Miss. 499; Wilson v. Town of Handsboro, 99 Miss. 257, 258, 259; Tonkel v. Williams, 112 So. 369, 370; Meyer Bros. v. Whitehead, 62 Miss. 389; I. B. Rowell & Co. et al. v. Sandifer, 129 Miss. 178; Horne v. Moorhead, 152 So. 495, 153 So. 668.

Lotterhos & Travis, of Jackson, for appellee.

It has already been settled by this court that the Brotherhood of Railroad Trainmen, although it is an unincorporated association, is nevertheless subject to suit in the state of Mississippi.

Varnado v. Whitney, 166 Miss. 663, 147 So. 479.

We claim that when the Brotherhood has enjoyed all the benefits of the statute and is liable to suit and has done the kind of business authorized by the statute but has nevertheless neglected to appoint the attorney required, then process may be served on any proper agent and representative.

Varnado v. Whitney, 166 Miss. 663, 147 So. 479.

An unincorporated association such as the appellant, when subject to suit, may be brought into court by service of process on a proper agent.

Fidelity & Casualty Co. v. Cross, 127 Miss. 31, 89 So. 780; Great Southern Life Ins. Co. v. Gomillion, 145 Miss. 314, 110 So. 770; Syz v. Milk Wagon Drivers Union, 24 S.W.2d 1080; Sprainis v. Lietuwishika, 232 Ill.App. 427; Unkovich v. New York Central R. R. Co. et al., 168 A. 867; Adams Express Co. v. State, 44 N.E. 506; Fitzpatrick v. Rutter, 43 N.E. 392; Supreme Council v. Boyle, 44 N.E. 56; Slaughter v. American Baptist Publication Society, 150 S.W. 224; Grand Lodge v. Massey, 132 S.E. 270; Adams Express Co. v. Schofield, 64 S.W. 903; Hamilton v. Delaware Motor Trades, 155 A. 595; Hatheway v. American Mining Stock Exchange, 31. Hun. 575; Heralds of Liberty v. Bowen, 68 S.E. 1008; W. O. W. v. Blowman, 150 S.E. 436; 4 Thompson on Corporations (3 Ed.), section 3075; Christian v. International Ass'n of Machinists et al., 7 F.2d 481; Union Mine Workers v. Coronado Coal Co., 259 U.S. 344, 66 L.Ed. 975; Pervanger v. Union Casualty Co., 81 Miss. 32, 32 So. 909; National Harness Ass'n v. Federal Trade Commission (C. C. A. 6th. Cir.), 268 F. 705; Evanson v. Spaulding (C. C. A. 9th Cir.), 150 F. 517; Travellers' Protective Ass'n v. Gilbert, 104 F. 46; Lipe v. Carolina Ry. Co., 116 S.E. 101.

On review of the original judgment in this court, the transcript of testimony not being in the record, the court must indulge every presumption in favor of the validity of the judgment, wherefore, the cause must be affirmed unless the law is that the brotherhood cannot be brought into court by service on any representative except the insurance commissioner, even though the insurance commissioner has not been authorized to receive the process.

Rowell & Co. v. Sandifer, 129 Miss. 167, 91 So. 899; Berry v. Dampier, 131 Miss. 893, 95 So. 744; Commonwealth Bank v. Martin, 9 Smedes & M. 613; Monk v. Horne, 38 Miss. 100; Cannon v. Cooper, 39 Miss. 784; Miss. Power Co. v. Russell, 152 So. 847; Gulf & Ship Island R. R. Co. v. Riley Mercantile Co., 139 Miss. 158, 104 So. 81; Scott County v. Dubois, 158 Miss. 245, 130 So. 106.

The court below properly denied the motion to vacate.

Horne v. Moorhead, 153 So. 668; Jackson v. Redding, 162 Miss. 323, 138 So. 295; Martin v. Miller, 103 Miss. 754, 60 So. 772; Cotton v. Harlan, 124 Miss. 691, 87 So. 152; Federal Reserve Bank v. Wall, 103 So. 5, 138 Miss. 204; McIntosh v. Munson Road Machinery Co., 145 So. 731; Barber v. City of Biloxi, 76 Miss. 578, 25 So. 298; Kelly v. Harrison, 69 Miss. 856, 12 So. 261; A. & V. Ry. Co. v. Bolding, 69 Miss. 255, 13 So. 833; Corry v. Buddendorff, 98 Miss. 98, 54 So. 84; 15 R. C. L., Judgments, sec. 166; 34 C. J. 393, par. 605; Beard v. McLain, 117 Miss. 316, 78 So. 184; Evans v. King-Peoples Auto Co., 135 Miss. 194, 99 So. 758; Stovall v. Graves-Ramsey Mtr. Co., 149 So. 733; 34 C. J. 210, par. 437, and 431, par. 677; Eastman-Gardner Co. v. Leverett, 141 Miss. 96, 106 So. 106.

OPINION

Griffith, J.

Appellee, being the holder of a pension certificate in appellant association, and upon which payment had been refused, sued the association in the circuit court of Hinds county. The association, an unincorporated fraternal society, had failed to comply with section 5246, Code 1930, which required it to appoint an attorney in this state upon whom process could be served, and summons was served upon one J. E. Pierce, who was shown by an exhibit to the declaration to be the secretary of the subordinate lodge of the association in said county. The association did not appear to defend and a default judgment for the full amount sued for was taken at the return term.

The judgment by default recited as follows:

"This cause coming on for trial on this day and the plaintiff having introduced testimony proving to the satisfaction of the court that the defendant, Brotherhood of Railroad Trainmen, is an unincorporated voluntary association, organized for the mutual benefit of its members and having a lodge system and representative form of government consisting of a grand lodge and subordinate lodges, and that it makes provisions for the payment of benefits to its members and is in all respects a fraternal society under the terms and provisions of article 14 of chapter 127, Mississippi Code of 1930 (section 5231 et seq.); and that said defendant, Brotherhood of Railroad Trainmen transacts business in the state of Mississippi, but has not as required by statute appointed the superintendent of insurance as its true and lawful attorney upon whom process may be served, and that J. E. Pierce, upon whom process was served, is and was at the time of the service of said process an agent of said defendant engaged in collecting dues from the members thereof in the state of Mississippi, and particularly Jackson, Mississippi; and it further appearing to the satisfaction of the court from the evidence that the said J. E. Pierce is the proper party upon whom process should be served in order to bring said defendant into court, and it appearing that the said defendant was duly summoned in accordance with law more than thirty days prior to this term of court by service...