Continental Insurance v. Mansfield

45 Miss. 311 | Miss. | 1871

Tarbell, J.:

The complaint in this case is in the name of “A. S. Mansfield, who sues for the use of Henrietta A.. Richardson, plaintiff, by attorney,” etc., against “The Continental Insurance Company of the city of New York, defendant,” etc., “of a plea of trespass on the case on promises, for that whereas, heretofore at Jackson, Miss., etc. Then follows in extenso a copy of the policy of insurance sued on. The summons is directed to the sheriff of Hinds county, and requires him to summon “The Continental Insurance Company of the city of New York, if to be found in his county. The sheriff made the following return upon the writ: “ Received and executed on D. N. Barrows and George A. Smythe, personally, agents, and copy delivered October 30, 1867.” At the return term of process judgment by default was taken for the amount claimed. The case having been brought to this court, the judgment of the circuit court was reversed, but upon application a re-argument was allowed. The question was one of jurisdiction, and consequently important.

There is nothing in the record to show whether “The Continental Insurance Company of the city of New York” is a voluntary association of individuals, or a corporation; if the former, whether resident or non-resident; if a corporation, whether foreign or domestic, except by presump tion, de hors the record.

If a voluntary association of resident, or non-resident individuals, service of process is pointed out in art. 8, p. 488 Rev. Code, and was not executed as therein directed. If a domestic corporation with the above title, art. 6, p. 292 Rev. Code, as amended by laws approved February 10, 1860, and December 7, 1863, prescribes the mode in which jurisdiction shall be obtained, or the defendants brought into court, but the mode pursued does not conform to the requirements thereof.

Assuming the “ Continental Insurance Company of New York City ” to be a foreign insurance company and a corporation, we have to inquire and determine what is legal service of process in such case under the provisions of the Code, § 11, p. 303. Article 57 of that section declares that “it shall not be lawful for any agent of any insurance company, incorporated by any other state than the state of Mississippi” to transact business as such without the authority of the auditor of public accounts, which authority must be obtained by a statement of the president or secretary of the company, under oath, filed with the auditor, which statement shall set forth the name and locality of the company, its capital stock, the act of incorporation, etc., together “with a written statement, under the seal of the company, signed by the president and secretary, authorizing such agent to acknowledge service of process for and on behalf of such company,” etc. Article 62 of the same section enacts that “copies of all papers required by this section to be deposited in the office of the auditor, certified under the hand and seal of such auditor, to be true and correct copies of such papers, shall be received as evidence in all courts and places, in the same manner, and have the same force and effect as the originals would have if produced.”

Upon the policy of insurance given in the declaration, “ D. N. Barrows” appears as an agent of the company sued, but it is nowhere shown that he is the agent authorized by the company, in pursuance of art. 57 above mentioned, to accept service of process therefor. Service of process was upon “B. N. Barrows and George A. Smythe, personally, agents.” To sustain the judgment, we have to presume the B. N. Barrows upon the policy, and in the return of the sheriff, to be one and the same; that the company had filed with the auditor the authority to accept service, as required by law; and that such authority was given to the same B. N. Barrows named in the policy and in the sheriff’s return. Are we authorized to indulge in these presumptions? Would it be just and prudent to do so ? The foregoing statute is peculiar and exceptional, if not extraordinary. Being in derogation of the common law, the rule of strict interpretation obtains, from which it would be unwise to depart. It is one of those statutes whose provisions must be strictly complied with, to authorize courts to’ proceed under it. In authorizing a non-resident defendant to be brought into court by service of process upon a resident agent, and thus conferring full jurisdiction, this statute makes such a wide departure from the ordinary mode of procedure as to demand a somewhat rigid enforcement. By section 11, Code, p. 303, a foreign insurance company, if a corporation, is authorized to be brought into court and full jurisdiction given, by service of process upon an agent authorized in the mode pointed out by that statute to accept the service, the simple statement of which suffices to show the danger of indulging in presumptions upon the facts of jurisdiction, more especially ■when those presumptions are numerous, and the facts to be established material and vital. In the record and proceedings before us, there would seem to be several material defects, alike in practice and matters of substance.

1. It does not appear affirmatively that the defendant is a foreign insurance company and a corporation, nor that D. N. Barrows, the agent of defendant named in the policy of insurance, is the duly authorized agent of the company, as required by the above statute, both of which ought to have been distinctly set forth in the declaration.

2. The sheriff was not directed, as it would have been well to have done in the summons, to serve the same upon the agent of defendant, naming such agent, and stating the defendant to be a foreign insurance company and a corporation.

3. The record contains no proof of the facts of jurisdiction, either by the return of the sheriff or the certificate of the auditor under art. 62, p. 305, Rev. Code. A full return by the sheriff, and the auditor’s certificate in the record of a judgment by default, would seem to be the dictates of prudence if not actually necessary in this class of cases, in addition to proper averments in the declaration. These suggestions indicate what, in our opinion, or their equivalent, ought to be embraced in the record of a valid judgment obtained by default against a foreign insurance company, brought into court by service of process on an agent, according to the provisions of the Code in reference thereto. There are several assignments of error, but they are technical and unimportant, at least unnecessary to the determination of this case. We reverse the judgment of the court below, and remand this case, with leave to plaintiff to apply for liberty to amend.

Simball, J., having been of counsel in the court below, does not sit in this case.