Continental Casualty Co. v. Gilmer

• Decision Date: 21 March 1927
• Docket Number: 26358
• Citation: 111 So. 741,146 Miss. 22
• Court: Mississippi Supreme Court
• Parties: CONTINENTAL CASUALTY CO. v. GILMER. [*]

111 So. 741

146 Miss. 22

CONTINENTAL CASUALTY CO. v. GILMER. ^[*]

No. 26358

Supreme Court of Mississippi

March 21, 1927

Division A

(Supreme Court of Mississippi, Division A.)

INSURANCE. Mere showing of service of summons on state insurance commissioner held insufficient to authorize default judgment against foreign insurance company (Hemingway's Code section 5069, par. 3).

Mere showing of service of summons on state insurance commissioner, with no other process issued or served or no certified copy of any instrument executed by foreign insurance company and required to be filed with state insurance commissioner under Code 1906, section 2606, par. 3 (Hemingway's Code, section 5069, par. 3), held insufficient to authorize default judgment against such foreign insurance company.

HON PAUL DEES, Special Judge.

APPEAL from circuit court of Leake county, HON. PAUL DEES, Special Judge.

Suit by Mrs. Rosella Gilmer against the Continental Casualty Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

Watkins, Watkins & Eager, for appellant.

I. The court was without jurisdiction to render the judgment appealed from, the record nowhere disclosing that T. M. Henry, Insurance Commissioner for the state of Mississippi, had been appointed agent and attorney for the appellant for the reception of process. Hemingway's Code, section 5069.

It will be noted that this was a foreign corporation. The manner provided by law for bringing into court and conferring jurisdiction upon the person of the defendant was statutory. 32 Cyc. 466; Globe & Rutgers Fire Ins. Co. v. Sayle, 65 So. 125, 107 Miss. 169; Anderson Mercantile Co. v. Cudahy Packing Co., 90 So. 11, 127 Miss. 301.

The following authorities sustain the view that where a method of service of process or a method of obtaining jurisdiction over the jurisdiction of a person or a corporation is provided by statute, there must be a strict compliance therewith. Moore v. Summerville, 80 Miss. 323; Ford v. Coleman, 41 Miss. 651; Robinson v. Miller, 57 Miss. 253; Ponder v. Martin, 119 Miss. 156, 80 So. 388; Belt v. Adams, 86 So. 584, 124 Miss. 194; Same case, 87 So. 666, 125 Miss. 387.

This court has frequently announced that although a judgment is void for want of jurisdiction, an appeal may be prosecuted therefrom and a reversal will be entered. Boutwell v. Grayson, 118 Miss. 80, 79 So. 61. There will be no presumption of jurisdiction. The rule is otherwise, however, in a collateral attack upon a judgment, in such cases the court will entertain a presumption of jurisdiction. Cotton v. Harlan, 87 So. 152, 124 Miss. 691; Federal Reserve Bank v. Wall, 103 So. 5, 138 Miss. 204.

II. Process in this case was void. It was not directed to the appellant, but was directed to its attorney. Section 2920, Hemingway's Code; 32 Cyc., page 546; Mut. Life Ins. Co. v. Uecker (Tex.), 101 S.W. 672; Knoll v. Leverett (La.), 66 So. 959; 21 R. C. L., page 1262. See also McDonald v. Mabee, 243 U.S. 90; In Re Johnson, 167 U.S. 120, 42 L.Ed. 103; Scott v. McNeal, 154 U.S. S.Ct. 34, 38 U.S. 896; Turner v. Sawyer, 150 U.S. 578, 37 U.S. S.Ct. 1189; and other cases referred to in 21 R. C. L., page 1262, note 11.

H. L. Bayless, Jr., and C. E. Johnson, for appellee.

I. Counsel for appellant contend that defendant had no notice, the process was void, and that to deprive their client of the amount of the judgment by this procedure would be without process of law. We contend that the defendant had such notice under the law as to cause it either to appear and defend the suit or suffer the judgment. Globe & Rutgers Fire Ins. Co. v. Sayle, 65 So. 125, 107 Miss. 169.

II. As to there being no notice received by the Continental Casualty Company in this case, see Fidelity & Casualty Co. of N. Y. v. Cross, 127 Miss. 31, 89 So. 780; Great Southern Life Ins. Co. v. Gomillion, 110 So. 770.

The state has power to determine by what process legal rights may be asserted or legal obligations enforced, provided the method of procedure adopted for these purposes gives reasonable notice, and affords fair opportunity to be heard before the issues are decided. Iowa, etc., R. R. Co. v. Iowa, 160 U.S. 389, 40 L.Ed. 467; Rogers v. Peck, 199 U.S. 425, 50 L.Ed. 256. There is abundant authority holding that where reasonable notice is given and opportunity to be heard afforded, due process has not been violated.

We think that in the present case, as shown by the record, reasonable notice was given, and opportunity had to appear and contest the suit of Mrs. Gilmer. In addition to the foregoing authorities, see: Galveston, etc., R. R. Co. v. Sheperd, 21 Tex. 274; Grant v. Clinton Cotton Mills, 56 S.C. 554, 35 S.E. 193; Fuller v. Plainfield Academic School, 6 Conn. 532.

OPINION

COOK, J.

The appellee, Mrs. Rosella Gilmer, instituted this suit against the appellant in the circuit court of Leake county, and from a judgment by default in her favor, this appeal was prosecuted.

The declaration alleged that the appellee was a resident of Leake county, Miss., and that the appellant was a corporation chartered under the laws of the state of Indiana, having its general offices in Chicago, Ill.; that on the 28th day of October, 1924, the appellant company issued and delivered to her husband, Billie B. Gilmer, a policy of insurance providing indemnity for loss of life, and other injuries and losses that he might suffer, in which policy contract the appellee was beneficiary; that by the terms of said policy contract the appellant company agreed to indemnify the beneficiary against certain accidents, among others, such as might result in his death, to the extent of the sum of five hundred dollars; that on or about the 5th day of June, 1925, her husband received a violent blow on the head, which resulted in his death on the following day; that the policy was then in full force and effect, all premiums having been paid; that after the death of the assured she made due and proper proofs thereof, as provided by the terms of the policy, and that the defendant company had failed and refused to pay the sum due under the terms of the policy. A copy of the policy, which recited that it was countersigned and issued at the office of the company at Jackson, Miss., by J. E. Austin, general agent, was made an exhibit to the declaration, but there was no averment in the declaration that the appellant company had ever been licensed to do business in the state of Mississippi, or that it had received any permit or authority from the state insurance commissioner in respect thereto, or that it was engaged in business in the state of Mississippi; and there was no averment that the appellant had an agent in the state of Mississippi upon whom service of process could be had, or that it had appointed the insurance commissioner of the state of Mississippi its agent for the purpose of receiving process.

On the 6th day of October, 1926, process was issued by the clerk of the circuit court of Leake county, addressed to the sheriff of Hinds county, Miss., commanding that he summon T. M. Henry, attorney for the Continental Casualty Company, personally to appear before the circuit court of Leake county, Miss., on the second Monday of November, 1926, to answer the suit. On this summons the sheriff of Hinds county made the following return:

"I have this day executed the within writ personally or the within named defendant Continental Casualty Company, by delivering a true copy of said writ to T. M. Henry, insurance commissioner for the state of Mississippi and attorney for process for the said nonresident defendant, this the 8th day of Oct. 1926.

"W. S. WELLS, Sheriff,

"By W. A. SANDEL, D. S."

This was the only process issued or served, and no certified copy of any instrument executed by the appellant and required to be filed with the state insurance commissioner by the third paragraph of section 2606, Code of 1906, section 5059, Hemingway's Code, was filed or made any part of this record. On the 15th day of November, 1926, a judgment by default was rendered against the appellant in which it was recited that--

"This cause came on for hearing on motion of the plaintiff for judgment by default and the court having heard said motion and it appearing unto the court that the defendant Continental Casualty Company, had been duly and legally summoned by a service personally upon T. M. Henry, insurance commissioner for the...