51 So. 786 | Ala. | 1910
— This is an original application to this court for a wrrit of mandamus to compel Hon. W. W. Pearson, judge of the Fifteenth judicial circuit, to set aside an alleged erroneous order made by him as judge of said court in a cause pending in such court in which the petitioner was a party. Judge Pearson has accepted service of the petition, and waived the rule nisi, and the cause is submitted for a peremptory writ.
The petition is in substance as follow :s That the petitioner instituted suit in the circuit court of Montgomery county against the defendant, and at the same time filed interrogatories under the statute to the de
The pending action in the circuit court was certainly grounded on, and adapted to he brought under, the provisions of an act of the second special session of the Legislature, dated August 25, 1909, which appears in the Acts of that Special Session, p. 279, and reads as follows:
“An act to stipulate how the service of process may be effected upon certain unincorporated organizations or associations.
“Be it enacted by the Legislature of Alabama as follows :
“Section 1. All unincorporated organizations or associations of every kind that issue policies or certificates of insurance of any kind to .their members shall be suable in any county where they do business or issue such policies or certificates, and the summons may be executed upon them by serving a copy of the summons and complaint upon any officer of such organization or association.”
We take it from the argument of counsel that the trial judge justified his action in the matter on the theory that the title of the act was not broad enough to embrace that part of the body of the act which provides that certain unincorporated associations (one of which was the defendant) are suable in this state. The service of the process seems to have been had in strict accordance with the provisions of the act.
While the title of the act could easily have been more specific, in declaring the purpose or object of the act to make such association liable to an action in its associated name, yet we are of the opinion that this is necessarily implied from the caption. “To stipulate how the service of process may be effected upon certain unincorporated organizations or associations” reasonably implies that they are, or are to be made, suable. To provide for the service of process implies the power to issue such process; and the power to issue or serve judicial process implies an action or suit pending, or to be commenced by such process. The power to serve judicial process upon an individual, association, or corporation implies necessarily that such individual, corporation, or association is suable or subject to the process of the court for which such process issues.
Process, that is judicial, such as is meant in the title of this act, is a very comprehensive term. It has been held by this court to include the mandate of a court to its officers, and a means whereby courts compel the appearance of parties or compliance .with its com
It is very true that at common law such unincorporated associations were not suable in their associated names, and that suit had to be brought against the members of such associations or organizations. The evident purpose of this statute was to change this rule, so as to make them suable in the courts of this state in their associated or club names, and to provide that service might be effected upon them by serving the process upon their officers. It therefore follows that the trial court erred. — Ency. PL & Pr. vol. 22, p. 242.
The association being suable under the statute, and being-made a party defendant to this suit, the plaintiff had the right, under sections 4049 et seq. of the Code, to file interrogatories to the defendant, and to have copies served upon it or its attorneys, as provided by section 4050 of the Code. It follows, therefore, that the court erred in quashing the service of the summons and complaint and the copy of the interrogatories.
This order of the court being one not subject to revision on appeal or other remedy, and being erroneous, and working an injury to the petitioner, the plaintiff in the action at law, thus preventing his proceeding against the defendant, who had been properly served, as he had a right to do, but for the erroneous order, a mandamus will issue to the judge of said circuit court, commanding him to vacate the order as prayed in the
Mandamus awarded.
