National Surety Co. v. Board of Supr's Holmes County

• Citation: 120 Miss. 706,83 So. 8
• Decision Date: 27 October 1919
• Docket Number: 20678
• Parties: NATIONAL SURETY CO. v. BOARD OF SUPR'S HOLMES COUNTY
• Court: United States State Supreme Court of Mississippi

83 So. 8

120 Miss. 706

NATIONAL SURETY CO. v. BOARD OF SUPR'S HOLMES COUNTY

No. 20678

Supreme Court of Mississippi

October 27, 1919

Division A

1. APPEAL AND ERROR. Failure to object below to misnaming of plaintiff.

When a suit was brought in the name of the board of supervisors for the benefit of the county, instead of in the name of the county, this was merely a misnomer and if defendant failed to object thereto in the trial court where a proper amendment could have been made, he is precluded from raising such point on appeal, since the county in such case was in court though not named as complainant.

2 INSURANCE. Service of process upon foreign insurance company. The return of service upon a summons in a suit by a county against a foreign surety company guaranteeing by its bond performance of a road building contract of "executed personally by delivering to Edgar Mayfield agent of and for defendant, etc.," was an insufficient showing of service of process to support a decree pro confesso, in view of Code 1906, section 937 (Hemingway's Code, section 4115), making section 920, Code 1906 (Hemingway's Code, section 4094), as to service upon foreign corporations in general inapplicable where the subject-matter is elsewhere prescribed, and section 2562, Code 1906 (Hemingway's Code, section 5027), defining insturance companies, and section 2606, clause 4, Code 1906 (Hemingway's Code, section 5069), as to agents of foreign insurance companies for service of process; since there was nothing in such return to show that service was had upon any person appointed and designated as such agent, nor that any such person was appointed by defendant.

3 EVIDENCE. Judicial notice of appointment of agent of foreign insurance company.

Courts cannot take judicial notice that the agent of a foreign insurance company upon whom process is served is the agent appointed by the company to receive and acknowledge service of process, but proof must be made that such appointment was made and that the process was served upon this identical agent.

HON. A. Y. WOODWARD, Chancellor.

APPEAL from the chancery court of Holmes county, HON. A. Y. WOODWARD, Chancellor.

On suggestion of Error, Suggestion of error in former opinion 81 So. 792, 120 Miss. , sustained in part and overruled in part. Judgment rendered dismissing complainants bill, set aside and annulled, and decree of lower court reversed and cause remanded.

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

Decree reversed and cause remanded.

R. H. & J. H. Thompson and Fultan Thompson, for appellant.

The first of the points on which the court asks argument, "is the designation of the plaintiff (complainant) in the declaration (bill of complaint), as the 'board of supervisors of Holmes County,' instead of the 'county of Holmes,' a mere misnomer, which, had it been objected to in the trial court, could have been cured by amendment, and which, since it was not there objected to, cannot be raised in this court?"

This question as propounded by the court presents two separate and independent inquiries; first, the misnomer proposition; and, second, whether all objections curable by amendment must necessarily be made in the court of original jurisdiction.

Reply to the misnomer propositions. With all due respect for the court, we submit that to affirm the decrees of the chancery court in this case on the ground that the board of supervisors of Holmes County" is a misnomer for the "County of Holmes," or for "Holmes County" will be not only to contradict the record, but to do violence to the statute, Mississippi Code. 1906, p. 309, providing that: "Any county may sue and be sued by its name," etc. This statute is an affirmative one and the only existing authorization for the institution or prosecution of a suit to enforce the rights of a county, and the following section 310, in practically the same words and having the same legal effect, the only authority for a suit to enforce the rights of a part of a county. To affirm the decrees of the chancery court in this case will be wholly to deny the statute effect. It must be remembered, and the proposition cannot be denied, that without statutory authority neither the board of supervisors of a county, nor a county itself, can maintain any suit, without an authoritative statute, otherwise providing suits to enforce the rights of a county, would have to be brought in the name of the state, the state having a right to sue by virtue of its sovereignty, a county being merely a part of the state. As shown in our original brief in this case, the statutes of this state in force for thirty-five years preceding the adoption of the Code of 1892 authorized the bringing of suits to enforce the rights of a county in the name of its board of supervisors. The present statute, Code of 1892, p. 290, Code of 1906, p. 390, repealed this authorization. To maintain the decrees appealed from in this case will be to deny the repeal of statutes which were manifestly repealed by Code 1892, p. 290, Code 1906, p. 309, and to perpetuate an authorization unquestionably terminated by the enactment of the present statute. Had the existing statute provided in affirmative terms that no suit shall be maintained if brought in the name of the board of supervisors of a county, it would not more clearly have negatived the right of a board of supervisors to bring suits in its own name than does the statute as written negative the right. Should this court hold the words "Board of Supervisors of Holmes County" to be a misnomer for the "County of Holmes." We submit with all due respect to the court, such a holding will be a violation of the statute, a refusal to respect and enforce it, since the bringing of the suit in the name of the board of supervisors is prohibited, impliedly if not affirmatively, and all authorization for so doing has been repealed. An implied statutory prohibition is just as effective as an affirmative one, and surely the present statute (pp. 309, 310, Code of 1906) repealed all previous authorization and warrant for the institution and prosecution of suits by the board of supervisors in its own name, and by necessary implication, as strong as an implication can be, prohibited such suits.

There is no misnomer in this record. The suit was instituted and prosecuted in the chancery court by the board of supervisors of Holmes county; and the appeal was resisted in this court by the board of supervisors. This is apparent from the record proper and is shown as well by the briefs of the solicitors for the appellee. The record proper, the bill of complaint, shows the only complainant to be the "board of supervisors of Holmes County," and the briefs of opposing counsel insisted and urged this court to adjudge that the board of supervisors of Holmes county owned the cause of action sought to be pleaded and had the right to sue in its own name. To ask this court upon this record and following such argumentation to vacate its judgment heretofore rendered in this cause and now to adjudge that the county of Holmes was the complainant, is, we say it respectfully, to invite this court to depart from the truth and to base a judgment upon that which is untrue as a matter of fact.

Where a bill in equity shows upon its face, as does the bill in this case, that the complainant has neither the power to sue nor a vested right to the cause of action, a decree granting such a complainant relief is an erroneous one, irrespective of whether or not the suit was defended in the court of original jurisdiction, and should be reversed on appeal. The second branch of the first proposition submitted by the court for argument.

Do all objections to a declaration or bill of complaint have to be taken in the court of original jurisdiction? We answer most emphatically, No.

A total absence of a right of action may be urged at any stage of the cause, and may be urged for the first time on appeal. La Casse. v. New Orleans, etc., Railroad (La.), 64 So. 1012. The rule that an objection on the ground of a want of capacity to sue cannot be raised for the first time on appeal, does not apply where it appears that plaintiff has no right at all to sue or is not entitled to any relief. Emmerson v. Merritt, 249 Ill. 538, 94 N.E. 955.

It is well settled that the objection that the complaint does not state facts sufficient to constitute a cause of action in the complaint may be urged for the first time on appeal. Nichols v. Board of County Commissioners of Weston County, 13 Wyo. 1, s. c. 3 Am. & Eng. Ann. Cases, 543 and the numerous authorities cited by the Wyoming court and in the note (p. 545), to the case in 3 Am. & Eng. Ann. Cases. The rule is that where the error is of a substantial kind and appears upon the face of the record proper, it is error in law and will be corrected by the appellate court without any exception having been taken in the court of original jurisdiction.

The error complained of in the case at bar is certainly substantial; the decrees complained of having been rendered in favor of a party having no power to sue and in addition is without title to the cause of action sought to be pleaded. The conjoint effect of the two defects is irresistible. The errors appear on the fact of the record proper, and are errors of law. Will this court affirm a decree shown by the record to be in law prejudicially erroneous to the appellant? It is unthinkable.

The second of the propositions on which the court asks argument "The validity vel non of the service of process upon the appellant" had in the case is the second point propounded by the court for argument. Our original proof brief fully discussed, this proposition and leaves but little to be now said on the subject. Section 920, Mississippi...