Roman v. Morgan

• Decision Date: 08 June 1909
• Citation: 50 So. 273,162 Ala. 133
• Parties: ROMAN v. MORGAN.
• Court: Alabama Supreme Court

50 So. 273

162 Ala. 133

ROMAN v. MORGAN.

Supreme Court of Alabama

June 8, 1909

Rehearing Denied June 30, 1909.

Appeal from Circuit Court, Morgan County; D. W. Speake, Judge.

Action by S. Roman, trustee, against A. A. Morgan. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Brown &amp Kyle, for appellant.

S. J Griffin and E. W. Godbey, for appellee.

SIMPSON J.

This is a statutory action of ejectment, brought by the appellant against the appellee. The plaintiff traced title from the United States government to the "North Alabama Land &amp Immigration Company," a corporation, and offered, as a link in its title, a duly certified transcript of the record of the chancery court of Morgan County showing a decree against said corporation for the sale of the lands involved in this suit, with the report of sale, a conveyance by the register to the appellant, and the confirmation by the court, and in connection therewith offered the deed from the register conveying the lands in accordance with said decree. The record showed a decree pro confesso against said corporation, and a final decree. Objection was made to the introduction of the transcript, on the ground that the decree pro confesso was void. The objection was sustained, and the transcript excluded.

The ground of objection is that the transcript does not show that process was properly served on said corporation. The return of the sheriff on the subp na is in these words, to wit: "Executed by handing to the defendants, J. C. Cheney, and also a copy to Ignatius Pollak, as president of the North Alabama Land & Immigration Company, a copy of the within summons." The decree pro confesso states: "In this cause, it being made to appear to the court that a summons, requiring the defendant the North Alabama Land & Immigration Company to appear and plead to or answer the bill of complaint in this cause within thirty days from the service of said summons upon it, was served upon it by the sheriff," etc. Our statute provides that, in suits against a corporation, "the summons may be executed by the delivery of the summons and complaint to the president, or other head thereof, secretary, cashier, station agent, or any other agent thereof." Code 1907, § 5303. Our court held, at an early day, on writ of error by the corporation, that the sheriff's return of service on W. G. H., cashier, etc., did not show that said party was cashier, as "the official duties of the sheriff did not require him to certify in his return who was the cashier," and that the identity of said cashier should "be ascertained, as other facts are, by proof." Planters' & Merchants' Bank of Huntsville v. Walker, Minor, 391.

This case has been followed by a long line of cases holding, on appeal, "that a judgment by default against a corporation cannot be sustained by the sheriff's official return, or even the clerk's statement," stating "that the person upon whom such process was served occupied such a relation to the defendant corporation as to bring the defendant into court," etc. M. & C. R. R. Co. v. Whorley, 74 Ala. 270, citing cases. These decisions require the record to show that the court ascertained by proof that the person served was the officer or agent of the corporation. Oxanna Bldg. Ass'n v. Agee, 99 Ala. 571, 13 So. 279, and cases cited; Oxanna Bldg. Ass'n v. Agee, 99 Ala. 591, 13 So. 280. This court later held that, where a judgment by default was rendered in a justice of the peace court without such proof, the circuit court on certiorari should vacate the judgment. Hoffman, A. & Co. v. Ala. Distillery, etc., Co., 124 Ala. 543, 27 So. 485. The same point was decided on petition for a writ of certiorari to this court. Ex parte Nat. Lumber Mfg. Co., 146 Ala. 600, 41 So. 10. In the case of Independent Publishing Co. v. Am. Press Ass'n, 102 Ala. 475, 493, 495, 497, 15 So. 947, 954, 955, which was an appeal from a judgment of the circuit court dismissing a writ of certiorari to a justice of peace court, this court discussed the matter at considerable length, referring to previous decisions, and by a divided court held that, so long as the record did not show that there was any proof as to the character of the officer upon whom the service was had, the court was without jurisdiction, and the judgment should be quashed. The majority opinion argues to the point that, so long as the record stood that way, the judgment was void, but gives as a reason why certiorari was the proper remedy in that case that the defendant should not be put to his appeal from the judgment of the justice, thereby waiving the matter of jurisdiction, and in concluding says: "There was no demurrer or objection for insufficiency, and no motion to dismiss or quash the writ as having been improvidently granted. No such question was before the court." Justice Head, who concurred with the Chief Justice in dissenting, says, among other things: "I understand the writ of certiorari is grantable as well when the court proceeded irregularly to judgment as when it is without jurisdiction. The case of Boyett et al. v. Frankfort Chair Co., 152 Ala. 317, 44 So. 546, was an appeal from a final decree, based on a decree pro confesso rendered without proof that the person on whom service was had was the president of the corporation, and the decree pro confesso recited: "And it being made known to the register that the party upon whom service was made for the defendant corporation was such agent as shown by the sheriff's return at the time of such service." The sheriff's return was: "Executed by handing the defendant W. A. W., as president of said corporation." This court held that the judgment, being based on a void decree pro confesso, was error; the court saying: "There is a wide difference between having a thing made known and having legal proof made of the thing. The character of the person served might be made known to the register by the unsworn statement of some person."

It will be noted that all of the cases cited were on direct appeal or certiorari, by the parties to the suit; and it may be well, at this point to advert to some of the recognized principles of the law with regard to collateral attacks on judgments of courts of record. It is a maxim: "Omnia præsumuntur rite et solemniter esse acta." "The judgment of a domestic court, having...