Florida Nursery & Trading Co. v. Watson

• Decision Date: 29 May 1917
• Docket Number: 4 Div. 513
• Citation: 75 So. 875,16 Ala.App. 159
• Parties: FLORIDA NURSERY & TRADING CO. v. WATSON.
• Court: Alabama Court of Appeals

75 So. 875

16 Ala.App. 159

FLORIDA NURSERY & TRADING CO. v. WATSON.

4 Div. 513

Court of Appeals of Alabama

May 29, 1917

Rehearing Denied June 15, 1917

Appeal from Circuit Court, Covington County; A.B. Foster, Judge.

Action by J.A. Watson against the Florida Nursery & Trading Company. From a judgment by default, defendant appeals. Affirmed.

A Whaley, of Andalusia, for appellant.

J.D Bailey, of Florala, and Jones, Thomas & Field, of Montgomery for appellee.

BROWN P.J.

This appeal is prosecuted from a judgment by default against the appellant, a corporation. The return on the summons and complaint recites that it was "executed April 8, 1916 by leaving a copy of the within summons and complaint with M.A. Lenear, known to me to be the manager of the Florida Nursery & Trading Co." This return, under the statute which now provides "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 or otherwise without further proof of such agency and this fact need not be recited in the judgment" (Code 1907, § 5303, as amended by Acts 1915, p. 607), is sufficient to authorize a judgment by default without further proof of Lenear's agency, and it is not essential to the regularity of the proceedings that the judgment should show that proof of agency was made to the court.

Under the statute now in force, and in force at the time the judgment in this case was rendered, the issues and questions of fact in civil cases at law are tried by the court without a jury, unless a jury is demanded. "And if the plaintiff desires a trial by jury, he shall indorse in writing his demand therefor on the summons and complaint, the attachment or other process or paper filed by him for the purpose of instituting the suit, or by filing a separate written demand with the clerk of the court at the commencement of the suit. If the defendant, or other person occupying the position of defendant or claimant, desires a trial by jury, he shall file a written demand therefor, with the clerk of the court, within thirty days after the perfection of service on him, by indorsing such demand upon his initial pleading, or by a separate written instrument. *** The failure to demand in writing a jury trial as herein provided shall be deemed and held a waiver of the right of trial by jury, and either party demanding a trial by jury shall not have the right to withdraw such demand without the consent of the opposite party." On the summons and complaint, in the record proper in this case, we find the following unsigned endorsement: "Plaintiff demands a trial by jury."

The defendant, although served with process, suffered judgment by default, and the damages were ascertained and assessed by the court without writ of inquiry and the intervention of a jury, and the appellant now insists that this constitutes reversible error. Treating this unsigned indorsement as a sufficient compliance with the statute we are of the opinion that the action of the court was authorized by section 3971 of the Code, which provides:

"In all actions upon accounts, whether the same be open or stated, if judgment is taken by default, or there is judgment nil dicit, and there is on file in the court, or if the plaintiff shall file at the time an itemized statement of said account, verified by the affidavit of a competent witness, made before and certified by an officer having authority under the laws of this state to take and

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