42 Tenn. 515 | Tenn. | 1865
delivered the opinion of the Court.
The defendant in error brought suit in the Circuit Court of Bedford County, against the plaintiff in error, on the 2d day of November, 1858, and on the same day the summons was executed on Thomas Hart, Robert Buchanan, John A. G-anaway, Simeon P. Vess, Daniel Stevens, and James W. Chilton. The declaration was filed at the December Term, and at the following April Term of said Court, the defendant having failed to appear or plead to thé action, the plaintiff proceeded to take a judgment by default, to reverse which, a writ of error is prosecuted to this Court. The only error assigned, is, there was no service of process, and consequently the judgment is void. By the rules of common law, the process must be served upon the Mayor or other head officer of the Corporation, and upon the failure of the defendants to make their appearance, in obedience to the summons, a distringas is issued against the defendants, under which the Sheriff distrains the lands and goods constituting the common stock of the Corporation, and then brings the defendants into Court. By the practice of the common law Courts of England, a judgment by default can only be taken for want of a plea, and not for want of an appearance; but by our prac
It is insisted in argument, that the Sheriff must not only show by his action, upon whom the process has been served, but also that such person is either the President or other head, Cashier, Treasurer, Secretary, Director, or chief' agent of the Corporation, residing within the County. We do not think so. If such were the case, then, in case the process is served upon a Director, to make such service sufficient, he must not only state that the person upon whom the process has been served, is a Director, but must also state historically that the President, Mayor or other head, the Cashier, Treasurer and Secretary of the Cor
The question is one of fact, was the process served upon the person upon whom the law declares service shall be sufficient? and this can only be put in issue, or inquired into in the same manner, that the fact of service upon the right party, in any other case, may be put in issue. The presumption in all' such cases, is, that, until the contrary is made to appear, that the Sheriff has done his duty, and has served the process upon the proper party.
If, in fact, the service was not upon any person upon whom the law declares service shall be deemed sufficient, the judgment is void, and the aggrieved party has a remedy by a proceeding, in which that fact may be shown.
But the fact, whether or not any of the persons, upon whom the process was served in this case, were officers of the Corporation, or persons upon whom the service shall be deemed sufficient, does not appear.
We, therefore, cannot see there is any error in the judgment. This Court can only reverse, because of errors apparent upon an inspection of the record.
The judgment of the Circuit Court will be affirmed.