177 So. 431 | La. Ct. App. | 1937
Plaintiff sued the defendant insurance company for $292, interest and cost, on a policy on the life of her deceased son. The citation was addressed to the defendant insurance company, through its local manager, C.E. Gahn, at Lafayette, La., and the citation was served on this manager on April 13, 1937. A judgment was rendered in favor of plaintiff and against the insurance company by default for the amount claimed on April 24, 1937, following.
On April 27th, the defendant filed a motion asking that the judgment be set aside and annulled for the reason that the judgment was rendered without proper citation and without a proper delay for answer; and, in the alternative, defendant asked for a new trial on specified grounds. Counsel for defendant abandoned the motion in so far as it sought to annul the judgment for want of proper citation, and in support of the motion for a new trial, offered in evidence a copy of the charter of the defendant insurance company, showing its domicile to be in the city of New Orleans and designating the officer for service of process as the president, and in his absence or inability to act, upon one of the vice presidents, or the secretary in the order named. The motion for a new trial was overruled, and defendant has taken a suspensive and devolutive appeal from the judgment rendered against it by default.
Counsel for plaintiff contends that inasmuch as the defendant waived that part of its motion seeking the nullity of the judgment, the only matter now up for consideration is the refusal to grant a new trial. But this position is not correct for the reason that defendant has appealed from the judgment rendered against it by default, and not from the order refusing a new trial. The defendant has the right to bring up on appeal the validity of the judgment against it by default, and in case it is shown that the judgment was rendered on a defective or void citation, the appellate court can annul the judgment and remand the case. See Item Co. v. St. Tammany Hotel et al. (La.App.) *432
175 So. 421; Kelly v. Kelleher,
Under article 165 of the Code of Practice (paragraph 10), as amended by Act No.
The defendant is a domestic insurance corporation. It is not, therefore, controlled by Act No.
Then when we go to Act No.
Under these circumstances, service of process on a domestic insurance corporation should be made on the officer designated in its acts of incorporation to receive service as provided for in Act No.
The charter of the defendant company designates such officer, and it is shown that the president of the corporation is T.B. Martin. The citation shows that it was served on the local manager at Lafayette, La., who is not the designated and proper officer for service.
It follows, therefore, that the citation issued and served in this case is illegal and invalid, and that the judgment therein obtained is null and void and must be set aside and the case remanded.
It is, for these reasons, ordered that the judgment appealed from be annulled and reversed, and that this case be remanded to the court below and be proceeded with in accordance with law, the defendant being allowed fifteen days from the time this decree becomes final to make such pleas or appearances as it may deem best; the plaintiff to pay the costs of this appeal, all other costs to await the final disposition of the case.