85 P. 1070 | Ariz. | 1906
This cause is brought to this court on a writ of error from the district court of Santa Cruz County by the plaintiffs in error, who were the defendants in that court. An action was brought by the defendant in error, O. K. Franklin, against the plaintiffs in error, Thomas J. Turner, as sheriff of Santa Cruz County, and The United States Fidelity and Guaranty Company, as surety on his official bond, to recover damages for the alleged loss sustained through the negligence of the deputy of the defendant sheriff in failing to properly levy a writ of attachment in a suit by the said Franklin against one John Dessart. Personal service of summons and complaint was had on Sheriff Turner, who appeared and answered. The summons for the guaranty company was served on J. J. Sweeney, its agent, and the sufficiency of the officer’s return of that service is contested by the plaintiff in error. The guaranty company made no appearance, and judgment was taken against it by default.
It appeared upon the trial that the writ of attachment in Franklin’s action against Dessart was duly issued on the thirteenth day of January, 1904, and was delivered by the clerk of the court to Franklin’s attorney, who delivered the same to the sheriff’s clerk, together with a copy of the said writ for filing in the recorder’s office, and the directions as to the particular property upon which the plaintiff, Franklin, desired to have it levied, and was by the sheriff’s clerk delivered to a deputy sheriff for levy.' The writ was returned on the following day, January 14th, with the proper return of service indorsed thereon; but the copy of the writ that is required by our statute to be filed in the recorder’s office, with a copy of the sheriff’s return indorsed thereon, in order to constitute a valid levy, was found to have been filed in the recorder’s office on the 14th of January without any copy of the sheriff’s return of service indorsed thereon, but with a memorandum attached thereto giving simply the number of
The first assignment of error is based upon the overruling of the defendant Turner’s general demurrer to the complaint. The next four assignments are based upon the insufficiency of the testimony to sustain the findings of the lower court. The insufficiency of the evidence to sustain the findings is a good ground for a new trial, and it has been in
The last assignment of error alleged that “the court erred in rendering judgment against the defendant The United States Fidelity and Guaranty Company at all, for the reason that there was no sufficient service of summons on said defendant, and no return of sufficient service to give the court jurisdiction.” Upon examination we find the complaint sufficient to sustain the judgment. The general provisions for the service of process upon corporations in paragraph 1323 of the Revised Statutes of 1901 are as follows: “In suits against any incorporated company or joint-stock association, the summons may be served on the president, secretary, or treasurer, or any director of such company or association or upon the local agent representing such company or association in the county in which suit is brought. . . .” In its petition for writ of error, the guaranty company alleges that it “is a surety company authorized to become surety on bonds in the territory of Arizona, but incorporated under the laws of the state of Maryland, having its principal place of business in Baltimore in said state of Maryland, but also having a duly authorized and appointed statutory agent, —to wit, J. J. Sweeney, — who resides at Phoenix, in the county of Maricopa and territory of Arizona.” While our provisions for service upon corporations in general are as above cited, we have a special statute for surety or guaranty companies, being title 8 of- the Revised Statutes of Arizona of 1901, and the plaintiff; in error was doing business in Arizona under the provisions of this title at all times herein named. Paragraph 414, being section 2 of said title 8, provides: “That no company shall do business under the pro
No error appearing in the record, the judgment of the lower court is affirmed.