Farmers State Bank of Huntsville v. Inman

• Decision Date: 26 October 1922
• Docket Number: 8 Div. 412.
• Citation: 208 Ala. 281,94 So. 105
• Parties: FARMERS' STATE BANK OF HUNTSVILLE v. INMAN ET AL.
• Court: Alabama Supreme Court

94 So. 105

208 Ala. 281

FARMERS' STATE BANK OF HUNTSVILLE v. INMAN ET AL.

8 Div. 412.

Supreme Court of Alabama

October 26, 1922

Appeal from Circuit Court, Madison County; Robert C. Brickell Judge.

Bill by the Farmers' State Bank of Huntsville against Kate E Inman and others. From a decree sustaining demurrer complainant appeals. Reversed and remanded.

R. E. Smith and Betts & Richardson, all of Huntsville, for appellant.

White & Watts, of Huntsville, for appellees.

SOMERVILLE J.

"The errors which will support a bill of review are errors of law apparent on the face of the decree. There must be error in substance, of prejudice to the party complaining, apparent on the face of the pleadings, proceedings or decree. *** Or, as it is expressed in 2 Dan. Ch. Pr. 1576, 'the decree complained of, must be contrary to some statutory enactment, or some principle or rule of law or equity, recognized and acknowledged, or settled by decision, or be at variance with the forms and practice of the court."' McCall v. McCurdy, 69 Ala. 65, 71.

1. In the proceeding under review the complainant herein was sued as Farmers' State Bank, a corporation, and was described in the bill of complaint as "a corporation organized and existing under the laws of the state of Alabama, and engaged in the general banking business in Huntsville, Ala." If complainant's full corporate name was and is, as now alleged, "The Farmers' State Bank of Huntsville, Ala.," its partial misnomer in the original bill should have been pointed out by a proper plea, and the failure to do so was a waiver of the defect. M. & C. R. R. Co. v. Brannum, 96 Ala. 461, 463, 11 So. 468; Whittlesey v. France, 74 N.Y. 456. Had such a plea been filed disclosing the corporation's full name, the complainant could have amended accordingly, and it would not have worked a change of parties. S. A. & M. Ry. v. Buford, 106 Ala. 303, 17 So. 395; Singer Mfg. Co. v. Greenleaf, 100 Ala. 272, 14 So. 109.

The misnomer complained of is not apparent upon the record, and if it were it would not, under the circumstances shown, be a meritorious ground for relief.

2. Prior to the act of September 17, 1915 (Gen. Acts 1915, p. 607), to authorize a judgment by default against a corporation it was necessary that the record should show that proof was made to the court that the person on whom the process was served was, at the time of the service, such an officer or agent of the defendant as was by law authorized to receive service for and on behalf of defendant (Hoffman v. Ala. D. & F. Co., 124 Ala. 542, 27 So. 485); and the return of the sheriff, on the process did not meet the requirement. Manhattan, etc., Ins. Co. v. Fowler, 76 Ala. 372. But, under the act referred to, "the return of the officer executing the summons that the person to whom delivered is the agent of the corporation shall be prima facie evidence of such fact, and authorize judgment by default without further proof."

We think that the sheriff's return in the cause under review is a sufficient statement of the required fact, and dispensed with the proof otherwise necessary. In another cause between these same parties, we have recently so held as to this identical return. Farmers' State Bank v. Inman, 92 So. 604.

In the cases cited by counsel for appellant the returns were quite different from the one here exhibited-as for example, in Hoffman v. Ala. D. & F. Co., 124 Ala. 542, 27 So. 485, "Executed the within by personal service on Jule L. Lockwood, president"; in Hitt Lumber Co. v. Turner, 187 Ala. 56, 65 So. 807, "I have executed the within by handing a copy *** to H. H. Hitt"; and in Independent Order, etc., v. Walker, 17 Ala. App. 66, 81 So. 844, "Executed *** by leaving a copy *** with A. Mitchell, as chief of [said order]." Moreover, the first two of the cases above cited were decided prior to the act of 1915, and the point of decision was merely that the return showed service on the supposed agent as an individual, and did not show service on the corporation named in the process as defendant.

In Oxanna Bldg. Ass'n v. Agee, 99 Ala. 571, 13 So. 279, the record recital was:

"Came the plaintiff by attorney, and the service having been proven on W. S. Larned, as secretary and treasurer of the defendant."

And it was observed that this proved nothing but the fact of service on Larned, and fell far short of the requirement.

The cases of Ind. Pub. Co. v. Am. Press Ass'n, 102 Ala. 475, 15 So. 947, and M. & C. R. R. Co. v. Brannum, 96 Ala. 461, 11 So. 468, involve no question as to the sufficiency of proof of agency, and are of no value here.

Serving process on a designated person as president, or as cashier or as agent, is but a recital of the officer's assumption at the time of the service, and not the statement, as an ascertained fact, of such person's relationship to the defendant corporation. In the case before us, the return was of service on the Farmers' State Bank by leaving a copy with Robert Adair, cashier. This is as clearly a statement of the fact that Adair was at that time cashier of the bank, as if it were...