50 So. 273 | Ala. | 1909
This is a statutory action of ejectment, brought by the appellant against the appellee. The plaintiff traced title from the United States government to the “North Alabama Land & Immigration Company,” a corporation, and offered, as a link in its title, a duly certified transcript of the record of the chancery court of Morgan County showing a decree against said
• The ground of objection is that the transcript does not show that process was properly served on said corporation. The return of the sheriff on the subpoena is in these words, to wit: “Executed by handing to the defendants, J. C. Cheney, and also a copy to Ignatius Poliak, as president of the North Alabama Land & Immigration Company, a copy of the within summons.” The decree pro confesso states: “In this cause, it being made to appear to the court that a summons, requiring the defendant, the North Alabama Land & Immigration Company to appear and plead to or answer the bill of complaint in this cause Avithin thirty days from the service of said summons upon it, was served upon it by the sheriff,” etc. Our statute provides that, in suits against a corporation, “the summons may be executed by the delivery of the summons and complaint to the president, or other head thereof, secretary, cashier, station agent, or any other agent thereof.” — Code 1907, § 5308. Our court held, at an early day, on Avrit of error by the corporation, that the sheriff’s return of service on W. Gf. H., cashier, etc., did not show that said party Avas cashier, as “the official duties of the sheriff did not require him to certify in his return who was the cashier,” and that the identity of said cashier should “be ascertained, as other facts are, by proof.” — Planters’ & Merchants’ Bank of Huntsville v. Walker, Minor, 391.
It will he noted that all of the cases cited were on direct appeal, or certiorari, by the parties to the suit; and it may be well, at this point to advert to some of the recognized principles of the law with regard to collateral attacks on judgments of courts of record. It is a maxim: “Omnia prsesumuntur rite et solemniter esse acta.” “The judgment of a domestic court, having general and superior jurisdiction, is always to be presumed regular and valid, and founded upon jurisdiction properly and duly acquired, until the contrary is defi
An exception has been made where the service is “constructive,” as by publication against a nonresident, though the same author states that the later decisions are that “such a rule is arbitrary and illogical.” It is to these cases of constructive service, and cases where a special jurisdiction is conferred upon a court of general jurisdiction, thus rendering it pro hac vice a court of ' limited jurisdiction, that the cases cited in appellee’s brief refer. The principal case of Galpin v. Page, 18 Wall, 350, 366, 21 L. Ed. 959, was a case involving constructive service on a nonresident infant. The remark quoted from that case merely shows that no presumption will be indulged to contradict the averments in the record as to service of process. The case of Settlemier v. Sullivan, 97 U. S. 444, 24 L. Ed. 1110, involved a service by delivering a copy to a member of the family when
In the case now under consideration it will be noticed that it does not involve a question of constructive service on a nonresident, nor of special statutory proceedings. On the contrary, it is a case pertaining to the general jurisdiction of the court. Nor does it involve any contradiction of any part of the record or of the sheriff’s return. The sheriff made all the return which he was required to make. It was not his duty to state that the person served was an officer of the corporation, and if he had so stated it would not have had any probative force. That was a matter to be ascertained by the court, and the decree recites that “it being made to appear to the court that a summons requiring the defendant the North Alabama Land & Immigration Company * * was served upon it.” As stated by counsel for the appellee, service upon it could not be made, except by service upon its officer. Consequently this expression means service upon a proper officer of the corporation. “Although the word 'appear’ has reference, in one sense, to that which is seen by the eye, we have no doubt that it was intended to be used in its broader sense, and signifying that which is obvious, or known, or clear, or made clear, by evidence or reasoning, and that it comprehends all the cases in which it shall be satisfactorily known or shown to the court that,” etc. “The word 'appear,” or 'appearing,’ is one of frequent use in judicial proceedings (and is sometimes used in statutes referring to them) as meaning 'clear to the comprehension, when applied to matters of opinion or reasoning, and 'satisfactorily or legally known, or made
Tbe judgment of tbe court is reversed, and tbe cause remanded.
Reversed and remanded.