Globe Rutgers Fire Insurance Co. v. Sayle

• Decision Date: 25 May 1914
• Citation: 107 Miss. 169,65 So. 125
• Court: Mississippi Supreme Court
• Parties: GLOBE RUTGERS FIRE INSURANCE CO. v. JOHN SAYLE

65 So. 125

107 Miss. 169

GLOBE RUTGERS FIRE INSURANCE CO. v. JOHN SAYLE

Supreme Court of Mississippi

May 25, 1914

March 1914

APPEAL from the circuit court of Tallahatchie county. HON. N. A TAYLOR, Judge.

Suit by John Sayle against the Globe Rutgers Fire Insurance Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Hirsh Dent & Landau, for appellant.

First there was no service on appellant in court below. The summons issued by the deputy circuit clerk is bad, if not void, for the want of the seal of the court. John Pharis v. Uriah Conner, 3 S. & M. 87.

No service was had on this irregular or void summons on the appellant in the court below, and, therefore, the judgment entered is irregular and void. A judgment, entered by default against a party who has not been served with process and who has not appeared in the action, is irregular and void. 32 Cyc. 737; Duncan v. Gerdine, 59 Miss. 550; Prentiss v. Mellen, 1 S. & M. 521.

The summons was directed to the sheriff of Tallahatchie county. It was never received by him and no returns were ever made on it by him. The Code of 1906, section 3932, provides: In suits against insurance companies, the process may be served on any agent of the defendant, or sent to any county in which the office or principal place of business may be located, and there served as herein directed and authorized; or may be served on any one of the foregoing officers of such corporation or company and upon the secretary, cashier, treasurer, clerk, depot agent, attorney or any other officer or agent of such receiver or receivers, or upon them in person. When any writ or process against such corporation, company, receiver or receivers has been returned executed, the defendant or defendants shall be considered in court, and the action shall proceed as actions against natural persons; and all process and notices to be served upon such companies, corporations, or receivers, may be served as herein directed. There was no service on the defendant under this section. No return by the sheriff that defendant, or its agent, could be found in Tallahatchie county. There is indeed, nothing in this record to show that summons was ever delivered to the sheriff of Tallahatchie county.

Section 2606 of the Code of 1906 provides: No foreign insurance, indemnity or guaranty company shall be admitted and authorized to do business in this state until it shall, by a duly executed instrument, filed in his office, constitute and appoint the commissioner of insurance, and his legal successor, its true and lawful attorney, upon whom all process in any action or legal proceeding against it, which may be served upon its said attorney shall be of the same force and validity as if served on the company, and the authority thereof shall continue in force irrevocable so long as any liability of the company remains outstanding in this state. The service of such process shall be made by leaving a copy of the same in the hands or office of the said commissioner. Copies of such instrument certified by the said commissioner shall be deemed sufficient evidence thereof, as service upon the principal.

There is nothing in this record to show that the appellee had complied with any of the provisions of this section, or that it had appointed the commissioner of insurance of the state of Mississippi, its agent or true and lawful attorney. The certificate or summons, which purports to be a certificate from the insurance commissioner, does not show that the T. M. Henry, whom it appears, made this certificate, is the commissioner of insurance of the state of Mississippi.

Section 2555, Code of 1906, provides: The seal of this department (department of insurance) shall have around the margin thereof the words "commissioner of insurance, Mississippi," with the image of an eagle in the center and thirteen stars over the head of the eagle. Every certificate and other official paper, executed by the commissioner under authority of law and sealed with the said seal of this office, shall be received as evidence in all courts, investigations and proceedings authorized by law, and may be recorded in the same manner and with like effect as a deed; and all copies of paper in the office of the said commissioner certified by him and authenticated by said seal shall be accepted in all matters equally and in like manner as the original.

It will, therefore, be seen that the certificate of T. M. Henry, insurance commissioner, is not sufficient under the above section. There is no seal of the commissioner of insurance of Mississippi on the certificate of the summons.

We have been unable to find where there is such an officer as "insurance commissioner." The law provides for the creation of the department of insurance, and provides also, for the office of commissioner of insurance, and it provides how his acts may be authenticated under seal, and it provides what the seal shall contain. There was no compliance with this provision as shown by the summons in this record.

Section 2569 of the Code of 1906 provides: When legal process is served upon the commissioner as attorney for a foreign company or order, under the provisions of section 2606, he shall forthwith notify the company or order of such service by letter prepaid and directed to its secretary, or to its resident manager, if any, in the United States, and shall, within two days after such service, forward, in the same manner, a copy of the process served on him to said secretary or manager, or to such persons as may have been previously designated by the company, or order, by written notice filed in the office of the commissioner, as a condition of a valid and effectual service, and of the duty of the commissioner in the premises, the plaintiff in such process shall pay to the commissioner, at the time of service thereof, the sum of two dollars, which the said plaintiff shall recover as taxable cost if he prevails in his suit.

There is nothing in this record to show a compliance with this statute, in order to make it a valid and effectual service. There is nothing to show how summons was served on him or that he notified the company of such service by letter prepaid, directed or addressed to its secretary or to its resident manager, or to such person as may have been previously designated by the company or order, by written notice filed in the office of the commissioner of insurance. There is nothing to show that, as a condition of valid and effectual service, the appellee paid the commissioner, at the time of the service, the sum of two dollars, as required by the foregoing section.

The certificate of the clerk shows that he sent, by registered mail, to the Globe Rutgers Fire Insurance Company of New York, a true copy of this summons. There is nothing to show, when, where, or to what officer of the company, if any, he sent it. There is nothing to show that summons was ever received by appellant and if it had been received by appellant, this would not have been a compliance with the law with reference to the service of summons of this kind. There is no statutory provision requiring or authorizing the clerk to mail a summons of this kind, and his acts in the premises are void.

A statutory provision requiring the mailing of notice of the suit to the home office of the corporation is not jurisdictional. Where there has been no personal service, such mailing is insufficient to confer jurisdiction, unless consent to such a method of service is made a condition to the doing of business within the state by the corporation. 39 Cyc. 569.

Process of this kind must be executed according to the rules prescribed by the statute and the return of the officer must show the manner in which he executed the process. Crizer v. Gordon, 41 Miss. 562; Ezelle v. Simpson, 42 Miss. 516; Milan v. Strickly, 46 Miss. 724; Tucker v. Byars, 46 Miss. 551. The official return must, of itself, show clearly that legal and proper service was made, otherwise the judgment is void. Express Co. v. Hunt, 54 Miss. 664; Rawkins v. Delaney, 43 Miss. 197; Hargus v. Bowen, 46 Miss. 72; Dogan v. Barnes, 76 Miss. 568.

By whom was this summons served on T. M. Henry, "insurance commissioner"? T. M. Henry was insurance commissioner of what? Was T. M. Henry the attorney, in fact, for the defendant company and, if so, what authority did he have? Was summons served on him in accordance with the provisions of section 3932, Code of 1906, or was it served on him in accordance with the provisions of section 2606, Code of 1906, and did he comply with the provisions of section 2555, Code of 1906? These questions cannot be answered from this record, and, therefore, the judgment by default, on the entries on the summons is irregular and void. The return must show affirmatively the facts constituting a valid service. So the return must show that service was upon an officer or agent designated by statute. A return of process upon the agent appointed by a foreign corporation to accept service of process must show that the person served is such agent. The officer should confine himself to a settlement of what he actually does in serving the process and should not state conclusions of law and fact apart from what was done. 32 Cyc. 569.

The fact that there is a recital in the judgment, that the defendant had been duly and legally served with summons and for the length of time required by law, for this cause to be heard and tried, does not make the service legal and effective. This court has passed upon this question in the case of Watkins Machine and Foundry Company v. Cincinnati Rubber Mfg. Co., 96 Miss. 611.

Woods & Kuykendall, for appellee.

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