Globe Rutgers Fire Insurance v. Sayle

65 So. 125 | Miss. | 1914

Cook, J.,

delivered the opinion of the court.

Appellee filed suit against appellant upon an insurance policy issued by it, covering an automobile, averring that the automobile had been damaged by fire, and asking judgment against appellant for the amount of the damages. The defendant failing to appear and plead to the declaration a judgment by default was rendered, and a jury of inquiry impaneled to assess the damages. Upon the verdict of the jury therefore a judgment for five-hundred twenty-two dollars and fifty cents was entered. From that judgment this appeal is prosecuted.

When the declaration was filed a summons was issued, which, with the indorsements thereon, is as follows: “Circuit Court Summons. The State of Mississippi, To the Sheriff of Tallahatchie County, Greeting: We command you to summon Globe Eutgers Fire Insurance Co., Inc., if to be found in your county, personally to appear before the judge of the circuit court of said county, at a term thereof, to be begun and holden for the county aforesaid, at the courthouse thereof, in the town of Charleston on the first Monday of December, A. D. 1912, then and there to answer the complaint against it in said court by John Sayle. Herein fail not, and have then and there this writ, with your return indorsed thereon, showing how you have executed the same. Witness my hand as clerk, with the seal of said court hereunto affixed, this, the 5th day of July, A. D., 1912. (Signed) J. P. Dogan, Clerk, by H. H. Wimble, D. C. (Seal.) ”

The following indorsements are made on the back of the summons:

“I, J. P. Dogan, clerk, do hereby certify that I mailed .a true copy of this writ to the Globe Eutger Fire Ins. Co., New York, and that I received a receipt for same on the 15th day of July 1912. J. P. Dogan, Clerk, by II. H. Wimble, D. C. (Seal).”

“Served on me as attorney in fact for within named company, and copy of summons sent by me to home office of said company this July 26, 1912. T. M. Henry, Tns. Com., by McNair. (Seal.)”

The main controversy here is upon the validity of the return upon the summons. Was the defendant served with process in the manner provided by the law, which would authorize the court to enter a judgment by default?

It is the position of appellee that the acknowledgment of service indorsed on the summons by the commissioner of insurance is sufficient proof that the defendant had complied with the law by appointing the commissioner its attorney in fact according to the provisions of section 2606 of the Code of 1906, and that the acceptance or acknowledgment of service by the commissioner authorized the court to take judicial notice that the commissioner had been appointed attorney in fact of this corporation. The last clause of section 2606 provides how the appointment of the' commissioner may be, and we think must be, proven.

In the absence of a certified copy of the instrument constituting and appointing the commissioner of insuiv anee its “true and lawful attorney,” there is no way by which the court could judicially know that the commissioner was authorized to acknowledge service. The declaration does not allege that the defendant had executed the statutory power of attorney, and there was no legal evidence before the court that such, in fact, was the case.

To sustain a judgment by default it must affirmatively appear that the defendant was served with process.

It is contended that this appears in the recitals of the judgment itself to the effect that the court found that the defendant had been served with a summons in the manner and for the time required by law. The recital in the judgment would probably be sufficient to uphold the judgment if the record were otherwise silent on the service of summons, but in this case the record discloses just how the service was had, and, this form of service being insufficient to warrant a judgment by default, it thus affirmatively appears that the court had “an erroneous conception of the law.” Watkins Machine Co. v. Cincinnati Rubber Co., 96 Miss. 611, 52 So. 629. Before a default judgment may be rendered the record must show the service of process on defendant, or upon its attorney in fact. There is no service on the defendant appearing in the record, and there is nothing in the record to establish that defendant had executed the power of attorney prescribed by the statute. The record also shows the basis for the recitals in the judgment “that said defendant has come into this cause and filed a written tender.” The “written tender” appears in the record, and it is subject to the same infirmities as the service of process, and does not support the recital in the judgment.

Reversed and remanded.