Watkins Machine & Foundry Company v. Cincinnati Rubber Manufacturing Company

• Decision Date: 20 June 1910
• Citation: 96 Miss. 610,52 So. 629
• Parties: WATKINS MACHINE & FOUNDRY COMPANY v. CINCINNATI RUBBER MANUFACTURING COMPANY
• Court: Mississippi Supreme Court

52 So. 629

96 Miss. 610

WATKINS MACHINE & FOUNDRY COMPANY v. CINCINNATI RUBBER MANUFACTURING COMPANY

Supreme Court of Mississippi

June 20, 1910

March 1910

FROM the circuit court of Forrest county, HON. WILLIAM H. COOK Judge.

The Cincinnati, etc., Company, appellee, was plaintiff in the court below; the Watkins, etc., Company was defendant there. From a default judgment in plaintiff's favor defendant appealed to the circuit court. The facts as stated by ANDERSON, J., were as follows:

The appellee, Cincinnati Rubber Manufacturing Company, sued appellant, Watkins Machine & Foundry Company, in the circuit court of Forrest county, on an account for goods, wares, and merchandise, sold appellant by appellee, and recovered a judgment by default at the return term of the court on a summons returned as follows: "I have this day executed the within writ personally by delivering to the within named R. L. Bennett, for Watkins Machine & Foundry Co., a true copy of this writ. This 20th day of October, 1909. J. C. Magruder Sheriff." The Watkins Machine & Foundry Company is a Mississippi corporation. There is nothing in the record to show what connection, if any, R. L. Bennett had with the Watkins Machine & Foundry Company.

Reversed and remanded.

Sullivan & Tally, for appellant.

There is nothing in the declaration, or the exhibit attached to it or the summons, or anywhere else in the record to show that Bennett had any connection whatever with the defendant, the Watkins Machine & Foundry Company.

Code 1906, § 3932, provides how process shall be served when a corporation is the defendant. According to this section, the process may be served on the president, or other head of the corporation; upon the cashier, secretary, treasurer, clerk, or agent of the corporation. Inasmuch as such a process can only be served on a corporation by serving it upon someone who stands for the corporation; it must appear somewhere in the record who that person was. What relation such person bears to the corporation should always appear in the return. In the case at bar, the record will be searched in vain for information as to what R. L. Bennett was. The sheriff might as well have returned that he served the process on John Doe or Richard Roe for the Watkins Machine & Foundry Company, as to have returned that he served it on R. L. Bennett for the Watkins Machine & Foundry Company. A judgment by default on a return of service showing that a copy of the summons was delivered to John Doe, or Richard Roe, would have been as valid as this judgment rendered on the return in this case. What is R. L. Bennett? Is he president, cashier, secretary, treasurer, clerk, or agent of the Watkins Machine & Foundry Company, or did he represent it at all? This question can never be answered from the record in this case, and we submit that a judgment by default on such a return should be reversed. We call the court's attention to the following authorities: See the following authority from Century Digest, vol. 40, § 89, paragraphs A and B, column 2614:

"(a) (Cal. 1853). A defendant is not bound by the service of a writ upon a person with whom there is no evidence to connect him. Adams v. Town, 3 Cal. 247.

(b) (La. 1871). Service of citation on a third party, not shown to be the defendant's agent at the time is void. Jones v. Jones, 23 La. Ann. 304.

In 6 Thompson's Commentaries on the law of corporations, sec. 7545, it is said that the form and substance of the return of the officer who serves the writ is of extreme importance, because it is in the nature of the record and can not be averred against, except in certain cases. The test of a good return is a literal compliance with the statute.

McWillie & Thompson and Hannah & Cook, for appellee.

The defect in the service of process complained of in the above cause was one easily remediable at the time of the entry of the judgment by default. It was doubtless made known to the court that Bennett was as a matter of fact the agent of the defendant, the Watkins Machine & Foundry Company. At all events we have a right to assume such to have been the case for the judgment recites that it appeared to the court that the defendant had been duly and personally served with process in time to entitle the plaintiff to a judgment by default at the term of court in progress. This recital of the judgment of personal service upon the defendant is to be taken as true in the absence of all showing to the contrary and we are uninformed by the record that there is any reason to doubt the representative character of Bennett which must have been made to appear to the court to justify its recital that the summons had been duly served. The judgment followed sometime after the return of service and was the last step taken in the cause by the lower court. It should be observed that we are not now considering a judgment rendered by a court of special and limited authority where every fact necessary to sustain the jurisdiction of the court must appear but one of full original jurisdiction over the subject matter in controversy. The court below not only exercised jurisdiction but adjudicated the existence of the fact as to personal service upon the defendant...