Memphis & C.R. Co. v. Brannum

• Decision Date: 27 July 1892
• Citation: 11 So. 468,96 Ala. 461
• Court: Alabama Supreme Court
• Parties: MEMPHIS & C. R. CO. v. BRANNUM.

11 So. 468

96 Ala. 461

MEMPHIS & C. R. CO. v. BRANNUM.

Supreme Court of Alabama

July 27, 1892

Appeal from circuit court, Madison county; H. C. SPEAKE, Judge.

Action by J. C. Brannum against the Memphis & Charleston Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

Humes, Shefley & Speake, for appellant.

William Richardson, for appellee.

THORINGTON J.

This case originates from a suit commenced in the court of a justice of the peace, wherein appellee had a summons issued to "Thomas G. Morrow, as agent of the Memphis &amp Charleston R. R.," and the complaint filed has the following caption: "Jas. C. Brannun v. M. & C. R R." The summons was indorsed, "Summons T. G. Morrow, as agent." "Executed July, 1889." The docket of the justice contains the following entries: "July 18th. Summons and subp nas returned executed." "July 27. Continued by defendant until Sept. 2d, 1889." It further shows a judgment by default, entered September 2, 1889, against "defendants." On the 6th day of September, 1889, before the expiration of the time allowed by law for appeals from the judgments of a justice of the peace, the Memphis & Charleston Railroad Company applied for and obtained from the judge of the eighth circuit a common-law writ of certiorari, returnable into the circuit court of Madison county, by which the records and proceedings before the justice were returned into that court, where, on motion of appellee, the writ of certiorari was dismissed, and judgment for costs rendered against appellant and the sureties on the certiorari bond, and from that judgment this appeal is taken.

Neither the summons nor the complaint issued from the justice's court purports to be against the Memphis & Charleston Railroad Company, the petitioner in the application for the writ of certiorari. The constable's return showing that the summons was executed, must be referred to the person named in the summons, and the entry on the docket of the justice, showing a continuance of the case by the defendant, must be referred to the party sued. Whether that be determined by the summons or complaint before the justice, it is obvious that the Memphis & Charleston Railroad Company is not the person sued. If we look to the summons, the person served is Thomas G. Morrow, and the words, "As agent of the Memphis & Charleston R. R.," are mere descriptio personæ. 1 Black, Judgm. § 214. If we look to the complaint, the defendant is the "M. & C. R. R.;" and if we look to both summons and complaint, they do not together show a suit against the Memphis & Charleston Railroad Company. The judgment by default against the "defendants" is not a judgment against the Memphis & Charleston Railroad Company, the petitioner in the application for the writ of certiorari. If an execution should issue on the judgment from the justice's court against the Memphis & Charleston Railroad Company, it would be wholly unwarranted and void. Watson v. May, 6 Ala. 133; 1 Black, Judgm. §§ 218-220. This probably is not the ground on which the circuit court dismissed the certiorari, as the point is not referred to in the argument; but we infer the action of the circuit court rests on the ground that the petitioner had an adequate remedy by appeal. This case is to be distinguished from that class in which a judgment by default is rendered against a person or corporation sued by a wrong name, after service on the right person and a failure to plead the misnomer; in which class of cases it is held that the real defendant, notwithstanding the misnomer, will be concluded by the judgment so long as he can be identified or connected therewith. 1 Black, Judgm. § 213. But it is essential to the conclusiveness of such a judgment that it should be made to appear, not only that the real person was sued, but that he was duly served with process, though under a mistaken name. Id. §213, bottom page 256. Had it been made to appear in this case that Morrow, on whom service was made, was authorized to receive service for the Memphis & Charleston Railroad Company, the case, perhaps, would come within the text above cited and the authorities therein referred to. For aught that appears from the record and proceedings of the magistrate's court, neither the suit nor the judgment is against appellant, and consequently it is not injured thereby. Watson v. May, 6 Ala. 133. Appellant, however, by its petition, admits itself to be the person against whom the judgment was rendered, (but without legal service,) and, the case having been so treated by appellee also, we will...