Hoffman, Ahlers & Co. v. Alabama Distillery & Feeding Co.

124 Ala. 542 | Ala. | 1899

HARALSON, J.

— Common law writ of certiorari from the judge of the city court of Birmingham, to correct alleged errors apparent, in the rendition of a judgment by a justice of the peace. On final hearing .the court granted the prayer of the writ and quashed the judgment that had been rendered.

The suit was by the appellants, Hoffman, Ahlers & Co., plaintiffs, against the appellee- Alabama Distillery & Feeding Company, a corporation, defendant, and urns on a promissory note by the company to plaintiff:, on which judgment by default was rendered by the justice for $82.62 and costs, on February 11th, 1899. The Avrit A\ as presented to the judge, and Avas duly issued on the 17th of that month. The grounds presented' for the writ and for quashing the judgment, were (1) that the judgment by default failed to recite the fact of proof, that the person upon whom the service of .the summons Avas had Avas an officer of the corporation, who was authorized under the statute to receiAre service of process; (2) that the judgment being by default against a corporation Avas improper and erroneous, in that it failed to recite that proof of service on a proper officer of the corporation Avas made, upon Avhich to found the judgment; and (3) that judgment by default Avas rendered Avitliout proof of service upon a proper officer of the corporation.

The service made by the constable Avas in the following Avords: “Executed the within by personal service on Jule L. LockAvood, president, this 8th day of February- 1899.” The Avord “president,” following the name of LockAA-ood in the service, was mere descriptio persona\ and the service Avas upon him individually. — Luvas v. Pitman, 94 Ala. 616; Lowery v. Daniel, 98 Ala. 451. To authorize, the rendition of judgment by default against a corporation, the record must show that proof was made to the court- that the person on whom the process was served was, at the time of the service, such an officer or agent of the defendant, as, by law was authorized to receive service for and on behalf of defendant. Code, § 3274; M. F. I. Co. v. Fowler, 76 Ala. 372; Oxana B. & L. Asso. v. Agee, 99 Ala. 571; I. P. Co. v. A. P. Asso., 102 Ala. 475, 493. In the case last cited, the same question as here presented was considered at length and with great care, in which we held that on such a service' the justice’s court did not have jurisdiction of the defendant-and the judgment was improperly rendered. The circuit court dismissed the-writ of certiorari and rendered judgment against the petitioner and his-sureties on the certiorari bond. .This court reversed that judgment, and rendering the one the circuit court should have rendered, set aside and- vacated the judgment rendered by the justice of the peace. It is unnecessary and we are indisposed to rehearse the views we there expressed, to which we now adhere, and this,-without more, compels the affirmance of the judgment of the city court quashing the judgment rendered by the justice. See also M. & C. R. Co. v. Brannon, 96 Ala. 461.

Affirmed.