Order of Calanthe v. Armstrong

• Citation: 62 So. 269,7 Ala.App. 378
• Parties: ORDER OF CALANTHE v. ARMSTRONG.
• Decision Date: 15 April 1913
• Court: Alabama Court of Appeals

62 So. 269

7 Ala.App. 378

ORDER OF CALANTHE v. ARMSTRONG.

Court of Appeals of Alabama

April 15, 1913

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Neal Armstrong against the Order of Calanthe. Judgment for plaintiff. Defendant appeals. Reversed and remanded.

C.B. Powell, of Birmingham, for appellant.

Charles W. Tompkins, of Mobile, for appellee.

PELHAM J.

This case is submitted on appellee's motion to dismiss the appeal because not taken in time, and on the merits. Appellee insists that as the appeal was not taken within six months, as provided by section 2868 of the Code his motion should prevail. But section 2868 of the Code was amended by an act approved August 26, 1909 (Laws 1909, p 165), extending the time within which appeals may be taken to one year from the rendition of the judgment. Acts 1909, p 165. The record shows the appeal to have been taken within one year from the rendition of the judgment appealed from, and the appellee's motion is denied.

The suit was against a corporation, and a judgment by default was rendered against it in the court below, and the record shows that the summons was executed by service on C.A. Tuggle, "grand protector of said company." The judgment entry recites that the judgment by default in the trial court was rendered on proof "that service was had in this cause by service on C.A. Tuggle, grand protector of defendant corporation, and that said C.A. Tuggle was grand protector of defendant corporation at the time of the service of the summons and complaint in this case." There is nothing in this recital, and there is nothing otherwise set out in the transcript, from which it would appear that the summons was served upon a person upon whom service could be legally had for and on behalf of the defendant, or that the court ascertained by proof that the person served was an officer or agent of the corporation, within the meaning of that term as defined by section 5303 of the Code of 1907.

The record also shows the service of a branch summons and complaint to have been executed on the Secretary of State but a compliance with the requirements of the statutes authorizing a valid service to be had on this officer is nowhere shown by the record, whether we construe the complaint to be against a corporation, such as is referred to by sections 4560 and 4562 of the Code, or the act approved April 24, 1911 (Acts 1911, p. 700 et...