PUBLIC EMP. RETIREMENT SYSTEM v. DillonPUBLIC EMP. RETIREMENT SYSTEM v. Dillon
I.
This case presents a claim of insufficiency of service of process. The question turns on whether, Rulе 4(d), Miss.R.Civ.P., the Public Employees’ Retirement System of Mississippi (“the System“) more nearly resembles a “domestic corporation” or a “department” or “institution” of the Stаte of Mississippi. The Court below held it was the former and denied the motion to dismiss. We affirm.
II.
Plaintiffs, Johnnie Dillon and Asa Atwell Wiley, are both employees of the Franklin County Sheriff‘s Department. Both Wiley and Dillon are over the age of seventy and the System, pursuant to
Dillon and Wiley commenced this action on February 14, 1986, by filing their complаint in the Chancery Court of Franklin County, Mississippi. Named as the lone Defendant was the Public Employees’ Retirement System of Mississippi. In their complaint, Dillon and Wiley sought dеclaratory and injunctive relief so as to relieve them from the demand of the System that they be retired “forthwith“.
Process was issued for the System and was served by mail uрon Fred M. Walker as agent for the System. Walker holds the office of Executive Secretary of the System. On March 13, 1986, the System appeared specially, acting under
On November 13, 1986, the Chancery Court entered its final judgment granting Dillon and Wiley substantivе relief. For present purposes, we are concerned with that portion of the judgment which held
That the Public Employees’ Retirement System of Mississippi is a distinсt and separate corporation created by statute for the purpose of providing retirement benefits to participating covered employees. Service of process may be had upon it by mail or in the form and manner as for any other corporation under Rule 4(d)(4) of the Mississippi Rules of Civil Procedure. That it is not the State of Mississippi nor one of its departments, officers or institutions requiring the service of process upon the Attorney Generаl of the State of Mississippi under Rule 4(d)(5) nor is it a governmental entity mentioned in any other rule requiring personal service of process.
The System now appeals.
III.
A defendant may be subjected to the in personam jurisdiction of a court only by service of process conforming to some valid rule prescribing the method and procedure fоr such service. The premise suggests resort to
First, if the defendant be a domestic corporation, Rule 4(d)(4) authorizes service
by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process.
On the other hand, if the defendant is a department or institution of the State of Mississippi, effective service of process may be had only by sheriff or process server
by delivering a copy of the summons and complaint to the Attorney General of the State of Mississippi.
If the System be more like a “domestic corporation“, there is no question but that process was effectively served upоn it. In March of 1986, Fred M. Walker was the Executive Secretary of the Public Employees’ Retirement System and was one authorized to receive service of рrocess within the meaning of
We find our answer in Rule 4(d) read in the light of the Public Employees’ Rеtirement Law of 1952, as amended.
shall have all the powers and privileges of a corporation and is hereby designated a distinct and separate corporation... .
The System is further given the power to sue and be sued in its own name. (
To be sure, the System perfоrms a public function and is subject to far greater statutory control than the ordinary domestic corporation. If the legislature had wished to do so, it could hаve created the System so that it was merely a department or institution which was an arm or division of that legal entity, the State of Mississippi. The statute before us, however, creates the System “a distinct and separate corporation” and further provides that the System “shall have all of the powers and privilegеs of a corporation.” We see no reason to read these words except by their plain meaning.
It is no answer that the powers exercised by thе System may be a part of the executive power of the State of Mississippi. See Alexander v. State By and Through Allain, 441 So.2d 1329, 1342-43 (Miss. 1983).
True, the Public Employees Retirement Law of 1952, as amended, provides extensive and detailed regulations regarding the responsibilities and functioning of the System. These are no more than statutorily clothed articles of incorporatiоn and bylaws, reminding us of the day long past when all corporations were created by legislative enactment.
Whatever else may be said of it, the System exists аs a separate and distinct juridical entity in this state legislatively created a corporation both in form and in name. The Chancery Court correctly held the System subject to service of process under
PETITION FOR REHEARING DENIED; OPINION MODIFIED; AFFIRMED.
ROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and PRATHER, SULLIVAN and ANDERSON, JJ., concur.
PITTMAN and ZUCCARO, JJ., not participating.
Notes
[1] Rule 12(b), in relevant part, reads:
Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
* * * * * *
(4) Insufficiency of process,
(5) Insufficiency of service of process
* * * * * *
If the matter concerns the content of the summons, the motion should be made under Rule 12(b)(4). By сontrast, a motion under Rule 12(b)(5) is the correct procedural vehicle for challenging the mode of delivery or lack of delivery of the summons and complaint. See 5 Wright & Miller, Federal Practice & Procedure, § 1353, p. 578 (1969). When the defect consists of a misnamed defendant a challenge may be brought under either Rule 12(b)(4), since the summons contains an improper name, оr under Rule 12(b)(5) if the wrong party, someone not named in the summons, is served. Some courts will treat this problem under both Rules 12(b)(4) and (5). See Wright & Miller, supra, and Sweeney v. Greenwood Index Journal Co., 37 F. Supp. 484, 485 (W.D.S.C. 1941).
In this case the correct defendant was nаmed in the summons. The question is whether the person named in the summons as the defendant‘s agent and in fact served was under these circumstances an official legally empowered to accept process. We regard this concurrently a challenge, first, to sufficiency of process under Rule 12(b)(4) — was the correct agent named?, and, also, a challenge to sufficiency of service of process under Rule 12(b)(5) — was the correct agent served?, though hardly anything turns on thе point.