Prudential Cas. Co. v. Kerr, 6 Div. 778

CourtSupreme Court of Alabama
Citation202 Ala. 259,80 So. 97
Docket Number6 Div. 778
Decision Date20 June 1918

Rehearing Denied Nov. 14, 1918

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill by the Prudential Casualty Company against J.W. Kerr. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

David S. Anderson, of Birmingham, for appellant.

Goodwyn & Ross, of Bessemer, for appellee.


The bill was for injunction against execution on the judgment in a suit on a burglary insurance policy. One phase of the case was before the Court of Appeals in Prudential Casualty Co. v. Kerr, 14 Ala.App. 539, 71 So. 979.

A trial court retains control of its journals during the term or for the time specified by statute, and during such time may add to, strike out of, or alter its journals, or incorporate new matter. On final adjournment, or the expiration of the statutory period, control thereof for such amendment is lost. Wilder v. Bush, 75 So. 143; Lockwood v. Thompson, 73 So. 504; Hale v Kinnaird, 76 So. 954; Campbell v. Beyers, 189 Ala. 307, 66 So. 651; Briggs v. T.C., I. & R.R. Co., 175 Ala. 130, 57 So. 882; Code, § 5732 et seq.

If the complaint on which a judgment by default is based fails to state a cause of action, the judgment is not supported thereby. Code, § 4143; Hall v. First National Bank of Crossville, 196 Ala. 627, 72 So. 171. The complaint in the instant case, if it be in a suit on a written contract is not required to state the consideration, nor is it required to be proved; the writing prima facie importing a consideration. Code, § 3966; B.R., L. & P. Co. v. Littleton, 77 So. 565, 574; Newton v. Brook, 134 Ala. 269, 32 So. 722; Heirs of Holman v. Bank, 12 Ala. 369 (headnote 10); Click v. McAfee, 7 Port. 62; Phillips v. Scoggins, 1 Stew. & P. 28.

Does the averment of the complaint to the effect that the sum claimed was "due on a policy of insurance whereby the defendant on the 12th day of August, 1913, insured or indemnified for the term of one year the plaintiff against loss of money by burglary, etc., *** that said policy is the property of the plaintiff, etc.," import that the suit was founded on the breach of a written contract of insurance? The words "policy" or "policy of insurance," are the designations of the formal written instrument in which a contract of insurance is embodied. 2 Steph.Comm. 172; Black's Law Dict. 908; Trustees, First Baptist Church, v. Brooklyn Fire Ins. Co., 19 N.Y. 305, 308; Franklin Fire Ins. Co. v. Martin, 40 N.J.Law, 568, 29 Am.Rep. 271; Manny v. Dunlap, 16 Fed.Cas. 658, No. 9,047; Corporation of London Assur. v. Paterson, 106 Ga. 538, 32 S.E. 650; Liverpool & L. & G. Co. v. T.M.R.L. Co., 11 Okl. 585, 69 P. 938; Dayton Ins. Co. v. Kelly, 24 Ohio St. 346, 15 Am.Rep. 612; Cockerill v. C. Mut. Ins. Co., 16 Ohio, 148, 164; London & L. Fire Ins. Co. v. Lycoming Ins. Co., 105 Pa. 424, 430; Paul v. Virginia, 75 U.S. (8 Wall.) 168, 183, 19 L.Ed. 357; Greene v. Pacific Mut. Ins. Co., 91 Mass. (9 Allen) 217, 219; Goodall v. N.E. Mut. Fire Ins. Co., 25 N.H. 169, 192; 14 R.C.L. p. 925, § 102; 1 Cooley's Briefs on Ins. 574. Our statutes and decisions have virtually adopted the foregoing meaning of the words "policy" and "policy of insurance" as being the written contract of insurance, in contradistinction to the parol agreement to insure. Code, §§ 4573, 4574, 4579, 5382, form 13; Brotherhood, etc., v. Milner, 193 Ala. 68, 76, 69 So. 10; Allen v. Standard Ins. Co., 73 So. 897; Pacific Mutual Life Ins. Co. v. Hayes, 76 So. 12; Empire Life Ins. Co. v. Gee, 178 Ala. 492, 60 So. 90; Piedmont, etc., Co. v. Young, 58 Ala. 476, 29 Am.Rep. 770; Ala. Fidelity & Cas. Co. v. Ala. P. Savings Bank, 76 So. 103, 107; Insurance Co. v. Lovejoy, 78 So. 299, L.R.A.1918D, 860. The consideration therefor need not be stated in a count declaring thereon. Code 1907, § 5382, forms 12, 13, and 14; Phoenix Co. v. Moog, 78 Ala. 284, 56 Am.Rep. 31; Brooklyn Co. v. Bledsoe, 52 Ala. 538; Nat. Life & A. Ins. Co. v. Lokey, 166 Ala. 174, 52 So. 45; Knights, etc., v. Gillespie, 14 Ala.App. 493, 71 So. 67.

The complaint, containing only one count, was sufficient as one on which to rest the judgment by default against complainant as defendant in the court of law; for the use therein of the words "policy whereby the defendant on the 12th day of August, 1913, insured or indemnified for the term of one year the plaintiff, etc.," imported that the written contract of insurance was declared on, and that it was founded on a consideration that need not be stated.

At the time of the issuance of the policy and of its breach, of suit thereon, and of service of summons and complaint, the law made the secretary of state ex officio insurance commissioner, and, as such official, the agent of appellant, as a nonresident insurance company, on whom service of process might be perfected. Code, § 4560; Lewis v. Internat. Ins. Co., 73 So. 629. No other preliminary proof of service was necessary than that of the sheriff's return on the summons and complaint, to the prima facie effect that service was made on John Purifoy in his official capacity as insurance commissioner. The words of the return "as secretary of state and ex officio insurance commissioner for the state of Alabama" were not descriptio personae, but were the expression of the prima facie fact of perfected service on the said nonresident insurance corporation. Lucas v. Pittman, 94 Ala. 616, 10 So. 603; Ala. City, G. & A. Ry. Co. v. Heald, 178 Ala. 636, 639, 59 So. 461; Briel v. Exchange National Bank, 180 Ala. 576, 61 So. 277. The case of Hoffman v. Alabama Co., 124 Ala. 542, 27 So. 485, is not to a different purport. There the service was on an individual, of whom the word "president" was held to be merely discriptio personae.

The court takes judicial knowledge that on February 19, 1915, John Purifoy was the secretary of state and ex officio insurance commissioner of Alabama, and that the separate department of insurance, with its commissioner, was not created and provided for until September 25, 1915. Gen.Acts 1915, p. 834. As that of a sworn officer, the sheriff's return of service is held to be prima facie evidence that a return, warranted by the fact of service as therein indicated, was made. Ingram v. Ala. Power Co., 75 So. 304; Dunklin v. Wilson, 64 Ala. 162; Martin v. Barney, 20 Ala. 369; Brown v. Turner, 11 Ala. 752. The clerk was therefore authorized to correct his judgment entry from information gained by him from the sheriff's return.

Appellant insists in its bill that, notwithstanding the return of the sheriff so exhibited, no service of process by the sheriff was ever in truth made on the secretary of state as ex officio insurance commissioner, and that no notice was ever given to it as defendant in judgment in the lower court. A court of equity will enjoin a judgment which purports to have been rendered by default, on timely application therefor, with averment and proof that the defendant was not served with process, provided such complainant defendant also has a good and meritorious defense, shown to be available to him in a court of law, and that he will be able to prove on another trial. National Fertilizer Co. v. Hinson, 103 Ala. 532, 537, 15 So. 844; Rice v. Tobias, 89 Ala. 214, 7 So. 765; McDonald v. Cawhorn, 152 Ala. 357, 44 So. 395; Fields v. Henderson, 161 Ala. 534, 50 So. 56; Raisin Fert. Co. v. McKenna, 114 Ala. 274, 21 So. 816; Gill v. Moore, 76 So. 458; Dunklin v. Wilson, 64 Ala. 162; 6 Pom.Eq.Jur. §§ 658, 663.

Appellant insists that, to support the judgment by default against appellant, which is a foreign insurance company, the record must affirmatively show that proof was made when the judgment was taken, that the officer on whom service was perfected was, at the time, secretary of state and ex officio insurance commissioner, and as such was the agent of the defendant insurance company on whom service might be perfected. In support of this insistence it cites Code, § 5303; Manhattan Fire Ins. Co. v. Fowler, 76 Ala. 372; Order of Calanthe v. Armstrong, 7 Ala.App. 378, 62 So. 269; American Bonding Co. v. New York, etc., 11 Ala.App. 578, 66 So. 847.

In Fowler's Case, 76 Ala. 372, the complaint was executed by leaving a copy with Ed Warren, agent of the Manhattan Insurance Company, a body corporate, and by handing a copy of the same to Milner & Wilson. In the Armstrong Case, 7 Ala.App. 378, 62 So. 269, service was purported to have been perfected on the Grand Protector of the defendant corporation, and in American Bonding Co. v. New York, etc., 11 Ala.App. 578, 66 So. 847, service was perfected on R.W. Wilson, of the firm of Wilson & Sons, agents of the American Bonding Company, etc. On such returns of service it was necessary, under section 5303 of the Code (of force at the time), to prove the fact of such agency. In the case at bar the service purported to have been perfected was on that state official by the statute designated as the agent of the insurance company upon whom legal process might be served. Testimony to the effect that John Purifoy was such official on the date in question would have given the court no more information than that of which judicial knowledge was taken.

In an action for damages ex contractu, upon an unliquidated demand a default is held not to admit the amount of the demand, and proof is necessary to determine the amount for which the judgment is to be rendered. Maund v. Loeb & Bro., 87 Ala. 374, 6 So. 376. So a writ of inquiry is necessary when judgment by default or nihil dicit is entered in actions upon penal bonds or other writings for the nonperformance of any covenant or agreement contained therein. Code, § 5325. It is only in actions founded on any instrument of...

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