66 So. 847 | Ala. Ct. App. | 1914
On appeal in a civil action, to- sustain the jurisdiction of a trial court to- render a personal judgment, two things are essential: (1) The court must have acquired jurisdiction of the person of the
This appeal is prosecuted by the American Bonding Company of Baltimore City from a judgment by default against the Mobile Towing & Wrecking Company, O. B. Lyons, and the appellant; and by the only assignment of error in the record it insists that neither of these two prerequisites to the jurisdiction of the trial court is shown by the record.
The suit was commenced on the 6th day of June, 1913, by the issuance of a summons and complaint, and the sheriff’s return thereon is as follows: “Received June 6th, 1913, & on June 7th, 1913, I served copies of Avithin complaint & summons on B. R. Wilson, one of firm of W. K. P. Wilson & Son agents the American Bonding Company of Baltimore City, a corporation, & on Harry T. Hartwell, secretary Mobile Towing & Wrecking Company, a corporation & on June 9th, 1913,1 served a copy of within complaint & summons on O. B. Lyons.”
The judgment entry contains the following: “This day came the plaintiff by its attorneys, and it being proven to the court that service Avas had on the defendant the American Bonding Company of Baltimore City, a corporation, by service on Beverly R. Wilson, one of the firm of W. K P. Wilson & Son, as agents of the defendant the American Bonding Company of Baltimore City, a corporation, and that said Beverly R. Wilson was a member of the firm of W. K. P. Wilson & Son and also that W. K. P. Wilson and Son were the agents of the defendant the American Bonding Company of
The appellant does not question the sufficiency of the recitals in the judgment showing that proof ivas made as to the agency of W. K. P. Wilson & Son, and that Beveraly R. Wilson, upon whom service of process was made, was a member of that firm and an agent of the appellant; nor is there any question as to the sufficiency of the evidence to that end; but appellant insists that the sheriff’s return itself is not sufficient to authorize proof to be made that said Beverly R. Wilson was such agent. Appellant states its contention in brief as follows :
“The sheriff’s return on the summons and complaint in this cause states that service was had on B. R. Wilson, one of firm of W. K. P. Wilson & Son agents the American Bonding Company of Baltimore City, a corporation and on Harry T. Hartwell, etc. There is no comma between the words ‘agents’ and the American Bonding Company, nor does the word ‘of’ appear immediately after ‘agents,’ nor does the word ‘as’ appear immediately before ‘agents’ and after ‘W. K. P. Wilson & Son.’ Under this status, we insist that service was only had on Mr. B. R. Wilson, and that the words following ‘W. K. P. Wilson & Son agents the American Bonding Company of Baltimore City, a corporation,’ are mere descriptio personae.”
Section 5303 of the Code of 1907 provides: “When the suit is against a corporation the summons may be executed by the delivery of a copy of the summons and complaint to the president or other head thereof, secretary, cashier, station agent, or any other agent thereof.”
Section 4143 of the Code of 1907 provides: “No judgment can be arrested, annulled, or set aside, for any matter not previously objected to, if the complaint contain a substantial cause of action.”
If the complaint in this case contained a substantial cause of action, and the judgment of the court is responsive to the complaint, the appellant cannot complain of errors or defects in the complaint which would have subjected it to demurrer. — Stewart v. Goode, et al., 29 Ala. 476; Kyle v. Caravello, 103 Ala. 153, 15 South. 527; Walker v. Mobile Marine D. & Mutual Ins. Co., 31 Ala. 530; Harris v. Plant & Co., 31 Ala. 644; Childress, et al. v. Mann & Co., 33 Ala. 207; Mahoney v. O’Leary, 34 Ala. 101; Foster v. State, 39 Ala. 239; Douglas v. Beasley, 40 Ala. 143; Martin v. Rushton, 42 Ala. 292; Watson v. Knight, 44 Ala. 354; Leach, et al. v. Bush, 57 Ala. 153. And this is true, notwithstanding the complaint might have been subject to the objection of a misjoinder of causes of action in one and the same count. — Walker v. Mobile M. D. & M. Ins. Co., 31 Ala. 529; Phillips v. Sellers, 42 Ala. 661; Whilden & Sons v. Merchants’ & Planters’ Nat. Bank, 64 Ala. 27, 38 Am. Rep. 1. In other words, the court in construing the averments of the complaint in this case must adopt a liberal construction, and if by treating all amendable defects as amended it appears from the facts stated,
Chapter 114, art. 1, of the Code of 1907, dealing with the duties of harbor masters and port wardens of Mobile, provides for their election, qualifications, powers, and duties, and requires them to keep an office in the city of Mobile and there make and preserve a full record of their official acts and dockets of their official fees, showing their amounts, and from what vessels or persons collected, on what account, and at what time; and requiring the harbor master to keep such office open daily, except Sunday, and to remain in his office except when engaged elsewhere in the performance of his duties. Such records are at all times open to public inspection, free of charge.
Section 4906 specially prescribes the duty of harbor masters as follows: “The harbor master shall, on the request of the owner, master, or consignee of any vessel arriving within the limits stated in this article, regulate and station such vessel, and may from time to time remove any such as are not employed or immediately about to be employed in receiving or discharging cargo or ballast, if necessary to make room for such other vessels as may require, immediate accommodation for receiving or. discharging ballast or cargo. He shall not interfere with the selection by the master, owner, agent, or consignee of a vessel of a wharf, bulkhead or shore berth for the discharge or receipt of cargo or ballast where such wharves, bulkheads or shore berths so selected are erected within the limits and in the manner of construction fixed by the Mobile river commission, or station such vessel at other berths than the one so selected by the master, agent, owner, or consignee, unless the person or authority controlling such select-
Section 4908 provides for the examination as to the qualifications of candidates for election to the office of deputy harbor master before their election. Section 4909 is as follows: “Such deputy harbor masters, before entering on the duties of their office, shall give bond in the sum of one thousand dollars, for the faithful performance of their duties, to be taken and approved by and filed with the judge of probate for Mobile county, who shall at the same time administer to them an oath to faithfully perform all the duties required of them by law as such deputy harbor masters.”
Section 49.10 provides: “Said deputy harbor masters shall, when not engaged in shifting and mooring vessels, be at the office of the harbor master, Sundays excepted, from seven o’clock a. m. to six p. m., for the purpose of attending to the shifting and mooring of vessels, and from the time such vessels are anchored by the pilot bringing her up until she is again taken in charge by a pilot to go down to bay or to sea, one of said deputy harbor masters, and no other person, shall superintend the shifting of said vessel from berth to berth or to the mooring of her in any other place than that where she was anchored by the pilot bringing her up. During office hours the deputy harbor masters shall not engage in any other occupation save the duties herein prescribed, and when called on to do so, shall moor or shift vessels at any reasonable hours before or after said office hours.”
In short, this chapter of the Code provides a complete scheme for the handling, mooring, and shifting of vessels in the harbor, the handling of their cargoes, and the protection of the harbor and property therein located. The harbor master and his deputies are officers of the state, upon whom it has imposed the enumerated duties, in the exercise of its police power, to carry into effect the state’s policy with reference to the protection of commerce in the harbor of Mobile.- — State, ex rel. Robertson v. McGough, 118 Ala. 164, 24 South. 395; Montgomery v. State, 107 Ala. 372, 18 South. 157; Ex parte Martin, et al., 180 Ala. 620, 61 South. 905.
The bond required by section 4909 of the Code is therefore in every sense an official bond, and within the provisions of section 1500 of the Code, and is obligatory on the principal and sureties thereon: “(1) For every breach of the condition during the time the officer continues in office, or discharges any of the duties thereof. (2) For the faithful discharge of any duties which may be required of such officer by any law passed subsequently to' the execution of such bond, although no such condition is expressed therein. (3) For the use and benefit of every person who is injured, as well by any wrongful act committed under color of his office as by his failure to perform, or the improper or neglectful performance of those duties imposed by law.”
The statute prescribes the form and conditions of official bonds, and it is immaterial that such bond is not
The complaint in this case contains two counts, and, as we construe it, is an action of trespass on the case against O. B. Lyons, as deputy barbor master, the appellant (the American Bonding Company of Baltimore City) as the surety on the official bond of said Lyons, and the Mobile Towing & Wrecking Company, for negligently causing or allowing the steamship Kylestrome to be driven violently against Pier No. 7 with resultant injury to the plaintiff in knocking down and destroying an elevated unloading platform constructed thereon by plaintiff for its use in connection with its business, while said vessel was being shifted from her berth in the barbor to another point therein under the supervision and superintendence of said Lyons as deputy harbor master; the said Mobile Towing & Wrecking Company merely furnishing the tug and crew for the movement of the vessel under the supervision and superintendence of said Lyons as such deputy barbor master. The gravamen of the complaint is the negligence of Lyons concurring with the servants of the Mobile Towing & Wrecking Company, in the movement of the vessel, and is thus stated in the first count of the complaint :
“That the defendant O. B. Lyons did not faithfully perform bis duty as such deputy barbor master in superintending said shifting of said vessel, but was so careless and negligent in the discharge of said duty in
The second count is the same as the first, except that it uses the term “grossly careless and negligent,” instead of the terms “careless and negligent,” used in the first count; but, as we construe them, each of these counts charges simple negligence on the part of the deputy harbor master and the Mobile Towing & Wrecking Company in the movement of the vessel. — L. & N. R. R. Co. v. Orr, 121 Ala. 489, 26 South. 35.
It is no objection to a complaint that it ascribes the injury suffered to concurrent coalescing breaches of duty by different persons, which have the effect to produce but a single cause of action. — L. & N. R. R. Co. v. Fitzgerald, 161 Ala. 405, 48 South. 860. It is but one tort committed by the concurring negligence of the joint tort-feasors, and such concurring negligence may be charged in one and the same count of the complaint.
Whatever may be the rule apart from the statute declaring the effect of an official bond, there can be no doubt that under its influence the sureties on the official bond are liable in an action of trespass or trespass on the case for the officer’s negligent performance of his official duties and for wrongful acts committed under color of his office or “by his failure to perform, or the
When the averments of the complaint are construed in connection with the sections of the Code prescribing the form and conditions of official bonds, resolving all doubt and intendments in favor of, rather than against, the sufficiency of the complaint, as we must do, when the attack is general upon the judgment, as in this case, the complaint states a substantial cause of action sufficient to support the judgment. — Werten v. K. B. Koosa Co., 169 Ala. 263, 53 South. 98; Atlantic Coast Line Ry. Co. v. Jones, 9 Ala. App. 499, 63 South. 693; Smith v. Dick, 95 Ala. 312, 10 South. 845; Ritch v. Thornton, 65 Ala. 309; U. S. F. & G. Co. v. Union Trust Co., 142 Ala. 532, 38 South. 177; Albright v. Mills, 86 Ala. 326, 5 South. 591; Ex parte Martin, 180 Ala. 620, 61 South. 905.
These holdings necessarily result in the affirmance of the judgment appealed from.
Affirmed.