Southern Express Co. v. Hunt

54 Miss. 664 | Miss. | 1877

Chalmeks, J.,

delivered the opinion of the court.

The judgment by default was improper. The act of March 4, 1873 (Acts 1873, p. 82), only authorizes service of process against express, railroad and telegraph companies to be made upon local agents of the corporation “if the president or other principal officers of said corporation cannot be found in the county in which suit is brought.” It is apparent, therefore, that the president or other principal officer is the party primarily to be served, and that the impossibility of finding him in the county is a condition precedent to the right to serve on the local agent. The officer, therefore, who executes the writ upon a local agent must state in his return that the principal cannot be found, just as is requisite in serving a writ upon a wife or other member of the family in the absence of the defendant husband. Foster v. Simmons, 40 Miss. 585; Mullins v. Sparks, 48 Miss. 129.

It was error also to overrule the motion to set aside the judgment by default upon the showing made. It should have been granted upon terms to be fixed by the court. Fore v. Folsom, 4 How. (Miss.) 282; City of Meridian v. Trussell, 52 Miss. 711.

Judgment reversed and cause remanded.