Oxanna Bldg. Ass'n v. Agee

• Decision Date: 23 May 1893
• Court: Alabama Supreme Court
• Parties: OXANNA BLDG. ASS'N v. AGEE.

13 So. 280

99 Ala. 591

OXANNA BLDG. ASS'N v. AGEE.

Supreme Court of Alabama

May 23, 1893

Appeal from city court of Anniston; B. F. Cassody, Judge.

Bill by A. P. Agee, as the receiver of the Anniston Savings & Deposit Company, against the Oxanna Building Association and H. S. Jewell, to have a lien enforced upon a certain lot for the payment of the purchase money of the same. The return of the sheriff upon the summons showed that it was "executed by handing the defendant H. S. Jewell a copy of the within on the 20th day of November, 1891, and by handing a copy to W. S. Larned, secretary and treasurer of the Oxanna Building Association." A decree pro confesso was rendered, which recited that "in this cause it appears to the clerk that a summons requiring the defendants, H. S. Jewell and the Oxanna Building Association, to plead to or answer the bill of complaint in this cause within thirty days from the service upon them was served upon H. S. Jewell, by the sheriff of Calhoun county, on the 20th day of November, 1891, and upon W. S. Larned, secretary and treasurer of the Oxanna Building Association, on the 28th day of December, 1891, and that said defendants having failed to plead," etc. Final decree was rendered, in which the chancellor held that the complainant was entitled to the relief prayed for, and the defendant the Oxanna Building Association brings this appeal. Reversed and remanded.

Savage & Coleman, for appellant.

Blackwell & Keith, for appellee.

HEAD, J.

A decree pro confesso and final decree were rendered against appellant, a corporation, on service of the summons upon "W. S. Larned, sec'ty and treas'r of defendant," without proof being made to the court that Larned was such officer at the time of the service. The decree is reversed, and cause remanded. See Association v. Agee, 13 South. Rep. 279, (at present term.)

Reversed and remanded.