Farmers' State Bank of Huntsville v. Inman

92 So. 604 | Ala. | 1922

Bill in equity, filed by appellee against appellant and others. There was decree for complainant (appellee), following decrees pro confesso.

The return of the sheriff, indorsed on the summons to the appellant corporation, is in these words:

"I have executed the within by handing a copy of the same to Farmers' State Bank by leaving a copy with Robt. Adair, cashier, this 10th day of December, 1920."

The act approved September 17, 1915 (Gen. Acts, pp. 607-608), amending Code, § 5303, reads:

"That section 5303 of the Code of Alabama be and is hereby amended so as to read: 5303. How Corporation Served. 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. The return of the officer executing the summons that the person to whom delivered is the agent of the corporation shall be prima facie evidence of such fact and authorize judgment by default or otherwise without further proof of such agency and this fact need not be recited in the judgment entry."

The argument is that the statute was not observed; that jurisdiction of the corporation was not obtained through the service shown by the return, for that the return does not affirm that Adair was cashier of the corporation at the time of the purported service. Where the return of an officer indorsed on process is susceptible of different meanings, in construction of the return that meaning will be adopted which is most conformable with the officer's legal duty; this in consonance with the unrebutted presumption of proper discharge of an official duty. Murphree on Sheriffs, §§ 839, 864; 21 R. C. L. 1316; Blinn v. Chessman, 49 Minn. 140, 51 N.W. 666, 32 Am. St. Rep. 536, 539; Sodini v. Sodini, 94 Minn. 301,102 N.W. 861, 110 Am. St. Rep. 371, 373, 374; 32 Cyc. pp. 498, 499. This court early manifested its approval of the indicated presumption and of a liberal spirit in construing returns made by sheriffs. Mayfield v. Allen, Minor, 274; Fears v. Thompson,82 Ala. 294, 2 So. 719; McGowin v. Dickson, 182 Ala. 161,62 So. 685; McAbee v. Parker, 78 Ala. 573, 575; Morrow v. Norvell Hdw. Co., 165 Ala. 331, 333-335, 51 So. 766. "A sheriff's return should be certain, yet the highest degree of certainty is not required." Bruce v. Cloutman, 45 N.H. 37, 84 Am. Dec. 111, 113. Nice criticism of words used in a return will not be indulged; and, if the language employed fairly permits the inference that the law's exactions were met, the return is sufficient. 32 Cyc. pp. 498, 499, and note 4, collating supporting decisions.

"The presumption is always in favor of the correctness of an officer's return, unless inconsistent with the manifest probabilities of the case." McAbee v. Parker, supra.

According appropriate effect to the pertinent rules of construction of the returns of sheriffs, the return above reproduced was sufficient in the premises. The corporation was made by the service subject to the jurisdiction of the court. To interpret this return as appellant contends would contradict the manifest effect of its language. That the return intended to affirm that Adair was then, at the time of service, the cashier of appellant cannot be well denied without recourse to methods of refinement inconsistent with the view this court has long enforced in construing returns of officers. The cases of Sawyer v. Edwards, 200 Ala. 26, 75 So. 338, and others noted on brief for appellant, do not conclude to the contrary. The Sawyer Case concerned a return on a summons to a corporation thus phrased in the transcript on file here:

"Executed by handing the defendant J. T. Sawyer A. M. Brock a copy of the within on the 8th of Nov. 1915."

As appears, this return made no allusion to any corporate officer or agent of the defendant "Brockton Mercantile Company," and did not recite that the person served (A. M. Brock) was an officer or agent of the defendant corporation.

After decree pro confesso taken against appellant, as well as other respondents, the complainant amended her bill; and, failing answer by appellant and its correspondents, decrees pro confesso were taken; and on final submission final decree in complainant's favor was rendered. The only notice undertaken to be given of this amendment of the bill was that authorized by Code, § 3133, and Chancery Rules 40, 44. The act approved September 22, 1915 (Gen. Acts, p. 706), superseded the regulations made by Code, § 3133, and Chancery Rules 40 and 44 in so far as they were inconsistent with provisions of the general act of 1915. The notice prescribed in the act of 1915 is a prerequisite to a decree pro confesso on an amended bill against any defendant, whether answering theretofore or not. The notice required by the act of 1915 of the amendment of complainant's bill was not given; hence, the decree pro confesso was premature and erroneous. The express language of the act of 1915 refers to and imposes its rule upon "all amendments" within its purview; and the amendment made by this complainant was subject thereto.

For this reason the decree is affected with error. It is reversed, and the cause is remanded.

Reversed and remanded.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.