H.H. Hitt Lumber Co. v. Turner

• Decision Date: 09 June 1914
• Docket Number: 756
• Parties: H.H. HITT LUMBER CO. v. TURNER.
• Court: Alabama Supreme Court

65 So. 807

187 Ala. 56

H.H. HITT LUMBER CO. v. TURNER.

No. 756

Supreme Court of Alabama

June 9, 1914

Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.

Action in justice's court by S.J. Turner against the H.H. Hitt Lumber Company. Judgment for plaintiff, and defendant petitioned for certiorari, and, from a denial of the writ by the circuit court, defendant appeals. Reversed, and judgment rendered quashing the judgment of the justice of the peace.

Anderson C.J., dissenting.

Callahan & Harris, of Decatur, for appellant.

Street & Isbell, of Guntersville, for appellee.

GARDNER J.

This cause brings up for review the action of the circuit court in dismissing the petition for common-law certiorari, which sought annulment of the judgment of the justice of the peace rendered against petitioner, appellant here. The appeal was to the Court of Appeals, and was duly transferred to this court under the provisions of Acts 1911, p. 449.

It is alleged that petitioner is a corporation, and that neither it nor any agent has been served with process in the suit, and that it had no knowledge thereof until the presentation of execution; that the judgment of the justice of the peace does not show that any service was had upon the petitioner (defendant in that suit), nor that independent proof was made to the court before judgment was rendered by default that the person on whom service was had was an agent of the defendant.

The proceedings before the justice disclose a summons issued to H.H. Hitt, of Hitt Lumber Company. The return thereon is as follows:

"I have executed the within by handing a copy of the same to H.H. Hitt this 21st day of September, 1912.

"R.N McCulloch, Sheriff."

The complaint which accompanied the summons (we may presume from the appearance thereof as shown in the transcript that the summons and the complaint were on the same paper) is styled "S.J. Turner, Plaintiff, v. H.H. Hitt Lumber Co., Defendant." The record of the justice shows cause styled, "S.J. Turner v. H.H. Hitt Lumber Co." The record of that court also shows that the judgment was by default.

Under our statute civil suits before justices of the peace, unless otherwise provided, must be commenced by summons issued by him, with the cause of action indorsed thereon. Code, § 4646. A complaint therefore is unnecessary, as has been held, though, of course, it is proper, and is quite as sufficient as if indorsed on the summons. Bessemer Ice Delivery Co. v. Brannen, 138 Ala. 161, 35 So. 56.

The summons in this cause, as shown above, was issued and directed to H.H. Hitt, of Hitt Lumber Company.

In the case of Hoffman, etc., v. Ala. Dis. Co., 124 Ala. 542, 27 So. 485, it was held that service of summons of Jule L. Lockwood, president, showed service on the person named as an individual; the word "President" being mere descriptio personae.

In the case of Memphis & C.R. Co. v. Brannum, 96 Ala. 461, 11 So. 468, it was held that, where summons issued to Thomas G. Morrow as agent of the Memphis & Charleston Railroad, the words, "as agent of the Memphis & Charleston Railroad" were descriptio personae, and that the service was upon him as an individual.

Under these authorities it must be held here that the words "of Hitt Lumber Company" are merely descriptive, and that the summons was issued and served upon H.H. Hitt as an individual. We therefore have here a complaint and docket showing the style of the defendant as H.H. Hitt Lumber Company, and a service had upon H.H. Hitt as an individual. The record is silent as to whether the defendant in that suit was a partnership or a corporation.

It is insisted by counsel for appellee that in order to support the judgment it should be presumed that appellant was a partnership, and that H.H. Hitt was a member of that firm, and that therefore a partnership was sued, and service was had upon a member thereof. In support of this insistence we are cited to no authority.

It will be conceded that the name H.H. Hitt Lumber Company is appropriate for either a partnership or a corporation. We know of no rule whereby a presumption arises either way. As was said in the case of Seymour & Sons v. Thomas Harrow Co., 81 Ala. 252, 1 So. 46:

"When the name of the plaintiff fairly imports either a partnership or an incorporated company, and the record is silent as to the character of the plaintiff, no presumption either way arises, and is not created by the mere use of the plural number."

It is true it was held in that case that where suit is brought in a name appropriate for a corporation, and the capacity to sue is not put in issue, the capacity to sue and corporate existence, if necessary, will be intended for the purposes of the suit, but this is a matter going to the regularity of the proceedings only, and no jurisdictional question is involved.

Our statute prescribes how service may be had upon a corporation. Code, § 5303. This court has strictly adhered to the following principle as stated in Ex parte National Lumber Mfg. Co., 146 Ala. 603, 41 So. 10:

"To authorize a judgment by default against a corporation, the record must show that proof was made that the person upon whom process was served was, at the time of the service, such an agent or officer as by law was authorized to receive service for and on behalf of the corporation. This has been the rule of practice in this state since the case of Huntsville v. Walker, Minor, 391. This rule has been followed in numerous cases decided by this court, and has become too firmly established to be now overturned. St. John v. Tombeckbee Bank, 3 Stew. 146; Wetumpka & C.R.R. Co. v. Cole, 6 Ala. 656; Oxford Iron Co. v. Spradley, 42 Ala. 24; Southern Express Co. v. Carroll, 42 Ala. 437; M. & E.R.R. Co. v. Hartwell, 43 Ala. 508; Independent Pub. Co. v. Amer. Press Association. 102 Ala. 475, 15 So. 947; Hoffman v. Ala. Distillery & Feeding Co., 124 Ala. 542, 27 So. 485."

Although it is alleged that petitioner is a corporation, and there is no denial thereof, we are urged by counsel to presume that appellant is a partnership, and that service was had upon a member thereof, in order to uphold the judgment.

It is the general rule that all material facts which are well alleged in the petition, and not denied or put in issue by the answer, must be taken as true. 6 Cyc. 790.

We recognize the rule that, jurisdiction of the justice court having once attached, its subsequent proceedings are presumed to be as regular as those of a court of general...