Great Southern Life Ins. Co. v. Gomillion

• Decision Date: 03 January 1927
• Docket Number: 26061
• Citation: 145 Miss. 314,110 So. 770
• Court: Mississippi Supreme Court
• Parties: GREAT SOUTHERN LIFE INS. CO. v. GOMILLION. [*]

110 So. 770

145 Miss. 314

GREAT SOUTHERN LIFE INS. CO. v. GOMILLION. ^[*]

No. 26061

Supreme Court of Mississippi

January 3, 1927

Division B

APPEAL from chancery court of Leake county, HON. T. P. GUYTON Chancellor.

Action by J. N. Gomillion against the Great Southern Life Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Judgment affirmed.

McMillon & Leach and Wells, Stevens & Jones, for appellant.

I. This cause involves purely the legal sufficiency of the process served upon appellant and the default judgment taken against it. We contend that there never was any service of process on the company but simply service on the person described as its agent. It is the universal rule that process in suit against corporation must run against the corporation by name and not against the officer and it necessarily follows that the service of the process must be on the corporation named by handing a copy thereof to some person authorized to represent it and the return must show service against the corporation and not simply against its agent. 32 Cyc 546, paragraph (b).

It follows, therefore, that although process directs service on the corporation that there is no service where the return is simply on a person as its agent and the corporation is nowhere named in the return as having been served. In the case at bar the return says that service was had by delivering a copy to Jodie I. Williams, agent of the company, and the clause showing the name of Williams and describing him as agent of the company is purely descriptive of his character and no wise constitutes service of process on the defendant.

Counsel for appellee recognized this fact and undertook to obviate it by the motion to amend the return which the court allowed and the amended return, as shown by the record, shows the recital of service against the appellant by handing a true copy to Williams, its agent.

Our position in this connection is sustained by Rand v Proprietors Connecticut River, etc., 3 Day 441, Conn. Case; Kirkpatrick Construction Co. v. Central Electric Co., 159 Ind. 639, 65 N.E. 913; Blodgett v. Schaffer 94 Mo. 652; 7 S.W. 436; Zeigler v. George Schleicher Co., 107 N.Y.S. 85; Virginia Bank v. Craig, 8 Leigh (Va.) 399; Sun Mutual Ins. Co. v. Seeligson, 59 Tex. 3; State v. Voorhies, 23 So. 871.

It is perfectly true that the only way service on a corporation is had is by service on its proper agent, but that fact does not relieve the necessity of the return showing that there was actual service on the corporation and not simply service on a person who happened to be its agent.

II. The court obtained no jurisdiction because section 4094, Hemingway's Code, was not complied with. This error in itself is conclusive of the invalidity of the decree. Eminent Household, etc., v. Lundy, 110 Miss. 861, 71 So. 16.

III. The amendment of the return was improperly allowed because of the following defects: (a) The sheriff was not a party to the motion. 32 Cyc. 537, subdivision C; Jefferson County Savings Bank v. McDermott, 99 Ala. 79, 10 So. 154. (b) The motion was heard without notice to appellant. 32 Cyc. 539.

There was no notice given to appellant of the motion to amend and extrinsic evidence was necessary. Counsel for appellee so recognized and introduced on the hearing a certified copy of the appointment of Jodie I. Williams as agent of the company in Mississippi, for process. Said certified copy having been furnished by the insurance commissioner of the state of Mississippi, the proper custodian of the original.

As supporting this contention, see the following cases: Chicago Planing Mill Co. v. Merchants Nat'l Bank, 86 Ill. 587; Linder v. Crawford, 95 Ill.App. 183; Haynes v. Knowles, 36 Mich. 407; Montgomery v. Merrill, 36 Mich. 97; Little Rock Trust Co. v. So. Missouri, etc., Co., 195 Mo. 669, 93 S.W. 944; Wittstruck v. Temple, 58 Nebr. 785, 51 N.W. 134; Wausaw First Nat'l Bank v. Kromer, 126 Wis. 436, 105 N.W. 823; King v. Davis, 137 F. 222, affirmed in 157 F. 676.

There was nothing of record in the case showing the connection between Jodie I. Williams and the appellant, and under the authority of Ins. Co. v. Sayle, 107 Miss. 169; and Nat'l Surety Co. v. Board of Supervisors, 120 Miss. 706, 83 So. 8, the opinion in the latter case on this point being on page 729, the return was not sufficient to have supported the default judgment and counsel for appellee recognized that fact and filed a motion to amend the return.

IV. Even if the amendment was properly allowed, it conferred no jurisdiction on the court to try the case at the March, 1926, term. Where the return of process is utterly defective, showing no service on the corporation, an amendment or an ex parte hearing does not relate back to the date of service so as to make the case triable at the return term of the original writ because the court on the return day had no jurisdiction whatever on the defendant. The amendment of the return is an ex post facto act and if permissible at all, after the process is made legal, it only requires the appearance of defendant at the next term of court.

V. Finally we wish to note that the sheriff in this case did not make the motion to amend the return. It was made upon motion of complainant. The sheriff did not make the amendment. There was no order authorizing him to, the order authorized the complainant to make the amendment and under the authority of 32 Cyc. 538, the officer is the only party who can make the amendment and is a necessary party to the motion.

The appellant has not had its day in court. It has not been protected by the due process of law nor has it been given the due protection of law.

Ross R. Barnett and H. C. Barnett, for appellee.

I. We contend that the sheriff's original return was sufficient to support a decree pro confesso and final decree because the sheriff was directed to summons the Great Southern Life Insurance Company by leaving a copy of the summons in the hands of its duly authorized agent, Jodie I. Williams. As a matter of fact, it seems clear that the defendant company was legally summoned and since the summons was had on the agent that the appellant company appointed for the purpose of receiving and acknowledging service of process, it should be just as binding and effective as if served upon the company itself.

Counsel for appellant contends that it is a universal rule that process in a suit against a corporation must run against a corporation by name and not against the officer; and it necessarily follows, as counsel for appellant further contend, that the service of process must be on the corporation named by handing a copy thereof to some person authorized to represent it, and the return must show service against the corporation and not simply against its agent.

Now in the case at bar it should be perfectly clear that the service of process in this case did run against the Great Southern Life Insurance Company by name and not against Jodie I. Williams, the duly authorized agent. It is our contention that since process was served on the identical person who was the defendant's fully authorized agent, that it should be immaterial as to what the officer's return shows. We contend that the original return by the sheriff of Leake county was sufficient, and to sustain our contention we cite Chicago Planing Mill Co. v. Merchants Nat'l Bank, 86 Ill. 587.

II. If the original return was not sufficient, we contend that it was not error for the court to permit said return to be amended. It is a universal rule of law that a sheriff's return or any proceedings may be amended at any time before final judgment is rendered, provided there are no new issues brought before the court nor any new parties joined in the issue.

To sustain this contention, we cite Howard v. Priestly, 58 Miss. 21; and A. & V. R. R. Co. v. Bolding, 69 Miss. 255, in which the court held "that the granting of amendments was largely within the discretion of the court and should be exercised liberally for the promotion of justice, where no statute restricts and no willful default of duty has occurred." See also 108 Miss. 742, 27 So. 185.

Counsel for appellant contend that it was fatal error for the lower court to render a decree pro confesso because section 4094, Hemingway's Code (section 920, Code of 1906) was not complied with in that the home office never received a copy of the service of process. It is our contention that it was not necessary for the chancery clerk of Leake county to mail a copy of the summons to the home office and to support this we cite Fidelity & Casualty Co. v. Cross, 89 So. 780, 127 Miss. 31.

It is also our contention that Jodie I. Williams had the same authority to acknowledge process as the insurance commissioner in view of section 5069, Hemingway's Code, clauses 3 and 4, giving the agent appointed by any insurance company the same authority to acknowledge process as the insurance commissioner or the company itself.

III. It is further argued that section 4094, Hemingway's Code (section 920, Code of 1906) does not apply in the case at bar simply because the defendant, Great Southern Life Insurance Company, is an insurance company and is not classed with foreign corporations in general; because the subject-matter is elsewhere prescribed. To sustain this contention, see Nat'l Surety Co. v. Board of Supervisors of Holmes County, 83 So. 8. Section 4115, Hemingway's Code, is also applicable to the case at bar.

The court further held in Fid. & Cas. Ins. Co. v. Cross, 89 So. 780; and Nat'l Surety Co. v. Board, 83 So. 8, that section 5027, Hemingway's Code (section 2562 Code of 1906) defines insurance companies; and section 5069, clause 4, Hemingway's Code (section 2606, clause 4, Code of...