Summary
In Brotherhood of Railway Trainmen v. Agnew, 170 Miss. 604, 155 So. 205, it was held that it is the duty of a court, before proceeding, to determine whether it has jurisdiction of the subject matter and the parties, and to examine the process and returns, and determine if the defendant has had notice as required by law.
Summary of this case from Honeywell v. AaronOpinion
No. 31300.
May 28, 1934. Suggestion of Error Overruled September 11, 1934.
1. COURTS.
Primary duty of court, before proceeding, is to determine whether it has jurisdiction, both of subject-matter and of parties.
2. JUDGMENT.
Court, on request for default judgment, is under duty to examine process and returns thereon, and determine whether process and manner of service was such as to give defendant notice required by law.
3. JUDGMENT.
Where return of service of process, together with other parts of record, leave any question of doubt or are not sufficiently explicit, court, before entering default judgment, has duty to hear, and to require to be produced, evidence showing that defendant was given notice required by law.
4. ASSOCIATIONS.
Where unincorporated association, suable as such, is engaged in business in state, and there is no specific statutory method for service of process on such association, courts will treat association as corporation for purposes of service of process, and will accept service on any agent or representative of association whose character and relation thereto is such that it could be reasonably anticipated that he would give notice of suit to association.
5. TRADE UNIONS.
Where foreign trainmen's brotherhood, engaged in insurance business in state, had never designated state insurance commissioner as its agent for service of process, service of process on association may properly be made in same manner as provided for service on foreign corporations doing business in state (Code 1930, sections 4167, 5246).
6. TRADE UNIONS.
Where foreign trainmen's brotherhood, engaged in insurance business in state, had never designated state insurance commissioner as its agent for service of process, service of process on officer of local lodge through whom association dealt in respect to matter in controversy, held sufficient to give court jurisdiction in suit against association (Code 1930, sections 4167, 5246).
7. EVIDENCE.
Presumption exists that public officers have performed their duties.
8. JUDGMENT.
Where judgment was rendered by court of general jurisdiction, all jurisdictional facts are conclusively presumed to have existed, unless contrary affirmatively appears from record, whether there be recitals in record to show jurisdictional facts or not, and rule applies although judgment was rendered by default, on constructive service of process alleged to be defective.
9. JUDGMENT.
Where judgment of court of general jurisdiction is collaterally attacked, presumption that all jurisdictional facts existed, unless contrary affirmatively appears from record, is conclusive, and on direct attack, presumption stands unless defendant affirmatively shows that defect complained of existed as matter of fact.
10. JUDGMENT.
Where default judgment entered by circuit court was made subject of direct attack on ground of insufficient service of process on agent of defendant, presumption that copy of process was duly mailed by clerk to home office of defendant association by registered letter held to prevail, in absence of affirmative showing that copy of process was not duly mailed (Code 1930, section 4167).
APPEAL from Circuit Court of Hinds County.
Alexander, Alexander Satterfield, of Jackson, for appellant.
The trial court had no jurisdiction over the defendant and the default judgment is void.
Article 14, sections 5231 and 5268, Code of 1930; Karges Furniture Co. v. Amalgamated Woodworkers' Union, 2 L.R.A. (N.S.) 788, 793.
It would seem to be sufficient to show that process was not served upon the statutory agent in this case. We believe there is no answer to this simple contention, since the statute makes no exception and is very particular to state the exclusive manner by which such society may be brought into court.
The plaintiff apparently out of a consciousness of his plight undertakes to make some alleged explanation in his default judgment as to why the statute was not followed. Such findings are wholly unwarranted as indeed was his attempt to go outside the record to explain his own default.
Watkins, etc., Co. v. Cincinnati Rubber Manufacturing Co., 96 Miss. 610, 52 So. 629; Eminent Household of Columbia Woodmen v. Lundy, 110 Miss. 881, 71 So. 16.
The theory behind all our statutes dealing with process against nonresident, is that everything possible must be done to insure notice to the nonresident.
Hirsch v. Kennington, 124 So. 345; Duchter v. Pizzutti, 276 U.S. 13, 72 L.Ed. 446; Sellers v. Powell, 152 So. 492.
The affidavit of J.E. Pierce upon whom service was attempted to be made shows that he did not communicate this fact to the appellant.
It has been held that certified copies of the appointment of process agent must be made a part of the record in cases of judgment by default.
Section 5246, Code of 1930; Universal Life Ins. Co. v. Catchings, 152 So. 817.
J.E. Pierce on whom service of process was attempted to be had, is not an agent for process for the appellant either in fact or in law.
Christian v. International Association of Machinists, 7 F.2d 481; Hirsch Bros. Co. v. Kennington, 124 So. 344; Grand International Brotherhood of L.E. v. Green, 89 So. 435; Grand Lodge Brotherhood of L.F. v. Cramer, 53 Ill. App. 578, 580; Southern Express Co. v. Craft, 43 Miss. 508; Betts v. Baxter, 58 Miss. 331; Joslin v. Coffin, 5 How. 539; Smith v. Cohen, 3 How. 35; Fatheree v. Long, 5 How. 664; Foster v. Simmons, 40 Miss. 586; Bustamente v. Boscher, 43 Miss. 175; Hammond v. Olive, 44 Miss. 546; Merritt v. White, 8 Ga. 438; Robinson v. Miller, 57 Miss. 238; Eskridge v. Jones, 1 Smedes M. 596; Lea v. Iron Belt Mercantile Co., 8 L.R.A. (N.S.) 279; National Surety Co. v. Board of Supervisors, 120 Miss. 706; Continental Cas. Co. v. Gilmer, 111 So. 741.
In the absence of a certified copy of the instrument constituting and appointing the commissioner of insurance its "true and lawful attorney," there is no way by which the court could judicially know that the commissioner was authorized to acknowledge service.
Globe Rutgers Fire Ins. Co. v. Sayle, 107 Miss. 169, 65 So. 125.
The motion to vacate the judgment was proper and should have been sustained.
34 C.J. 270; Planters Lbr. Co. v. Sibley, 130 Miss. 26, 35, 93 So. 440; Lee v. Spikes, 145 Miss. 897; Benwood Iron Works v. Tappan, 56 Miss. 666; Joiner v. Bank, 71 Miss. 383; Surety Ins. Co. v. Treadwell, 113 Miss. 200, 201; Moore Co. v. Hoskins, 66 Miss. 499; Wilson v. Town of Handsboro, 99 Miss. 257, 258, 259; Tonkel v. Williams, 112 So. 369, 370; Meyer Bros. v. Whitehead, 62 Miss. 389; I.B. Rowell Co. et al. v. Sandifer, 129 Miss. 178; Horne v. Moorhead, 152 So. 495, 153 So. 668.
Lotterhos Travis, of Jackson, for appellee.
It has already been settled by this court that the Brotherhood of Railroad Trainmen, although it is an unincorporated association, is nevertheless subject to suit in the state of Mississippi.
Varnado v. Whitney, 166 Miss. 663, 147 So. 479.
We claim that when the Brotherhood has enjoyed all the benefits of the statute and is liable to suit and has done the kind of business authorized by the statute but has nevertheless neglected to appoint the attorney required, then process may be served on any proper agent and representative.
Varnado v. Whitney, 166 Miss. 663, 147 So. 479.
An unincorporated association such as the appellant, when subject to suit, may be brought into court by service of process on a proper agent.
Fidelity Casualty Co. v. Cross, 127 Miss. 31, 89 So. 780; Great Southern Life Ins. Co. v. Gomillion, 145 Miss. 314, 110 So. 770; Syz v. Milk Wagon Drivers Union, 24 S.W.2d 1080; Sprainis v. Lietuwishika, 232 Ill. App. 427; Unkovich v. New York Central R.R. Co. et al., 168 A. 867; Adams Express Co. v. State, 44 N.E. 506; Fitzpatrick v. Rutter, 43 N.E. 392; Supreme Council v. Boyle, 44 N.E. 56; Slaughter v. American Baptist Publication Society, 150 S.W. 224; Grand Lodge v. Massey, 132 S.E. 270; Adams Express Co. v. Schofield, 64 S.W. 903; Hamilton v. Delaware Motor Trades, 155 A. 595; Hatheway v. American Mining Stock Exchange, 31 Hun. 575; Heralds of Liberty v. Bowen, 68 S.E. 1008; W.O.W. v. Bowman, 150 S.E. 436; 4 Thompson on Corporations (3 Ed.), section 3075; Christian v. International Ass'n of Machinists et al., 7 F.2d 481; Union Mine Workers v. Coronado Coal Co., 259 U.S. 344, 66 L.Ed. 975; Pervanger v. Union Casualty Co., 81 Miss. 32, 32 So. 909; National Harness Ass'n v. Federal Trade Commission (C.C.A. 6th Cir.), 268 Fed. 705; Evanson v. Spaulding (C.C.A. 9th Cir.), 150 Fed. 517; Travellers' Protective Ass'n v. Gilbert, 104 Fed. 46; Lipe v. Carolina Ry. Co., 116 S.E. 101.
On review of the original judgment in this court, the transcript of testimony not being in the record, the court must indulge every presumption in favor of the validity of the judgment, wherefore, the cause must be affirmed unless the law is that the brotherhood cannot be brought into court by service on any representative except the insurance commissioner, even though the insurance commissioner has not been authorized to receive the process.
Rowell Co. v. Sandifer, 129 Miss. 167, 91 So. 899; Berry v. Dampier, 131 Miss. 893, 95 So. 744; Commonwealth Bank v. Martin, 9 Smedes M. 613; Monk v. Horne, 38 Miss. 100; Cannon v. Cooper, 39 Miss. 784; Miss. Power Co. v. Russell, 152 So. 847; Gulf Ship Island R.R. Co. v. Riley Mercantile Co., 139 Miss. 158, 104 So. 81; Scott County v. Dubois, 158 Miss. 245, 130 So. 106.
The court below properly denied the motion to vacate.
Horne v. Moorhead, 153 So. 668; Jackson v. Redding, 162 Miss. 323, 138 So. 295; Martin v. Miller, 103 Miss. 754, 60 So. 772; Cotton v. Harlan, 124 Miss. 691, 87 So. 152; Federal Reserve Bank v. Wall, 103 So. 5, 138 Miss. 204; McIntosh v. Munson Road Machinery Co., 145 So. 731; Barber v. City of Biloxi, 76 Miss. 578, 25 So. 298; Kelly v. Harrison, 69 Miss. 856, 12 So. 261; A. V. Ry. Co. v. Bolding, 69 Miss. 255, 13 So. 833; Corry v. Buddendorff, 98 Miss. 98, 54 So. 84; 15 R.C.L., Judgments, sec. 166; 34 C.J. 393, par. 605; Beard v. McLain, 117 Miss. 316, 78 So. 184; Evans v. King-Peoples Auto Co., 135 Miss. 194, 99 So. 758; Stovall v. Graves-Ramsey Mtr. Co., 149 So. 733; 34 C.J. 210, par. 437, and 431, par. 677; Eastman-Gardner Co. v. Leverett, 141 Miss. 96, 106 So. 106.
Appellee, being the holder of a pension certificate in appellant association, and upon which payment had been refused, sued the association in the circuit court of Hinds county. The association, an unincorporated fraternal society, had failed to comply with section 5246, Code 1930, which required it to appoint an attorney in this state upon whom process could be served, and summons was served upon one J.E. Pierce, who was shown by an exhibit to the declaration to be the secretary of the subordinate lodge of the association in said county. The association did not appear to defend and a default judgment for the full amount sued for was taken at the return term.
The judgment by default recited as follows:
"This cause coming on for trial on this day and the plaintiff having introduced testimony proving to the satisfaction of the court that the defendant, Brotherhood of Railroad Trainmen, is an unincorporated voluntary association, organized for the mutual benefit of its members and having a lodge system and representative form of government consisting of a grand lodge and subordinate lodges, and that it makes provisions for the payment of benefits to its members and is in all respects a fraternal society under the terms and provisions of article 14 of chapter 127, Mississippi Code of 1930 (section 5231 et seq.); and that said defendant, Brotherhood of Railroad Trainmen transacts business in the state of Mississippi, but has not, as required by statute appointed the superintendent of insurance as its true and lawful attorney upon whom process may be served, and that J.E. Pierce, upon whom process was served, is and was at the time of the service of said process an agent of said defendant engaged in collecting dues from the members thereof in the state of Mississippi, and particularly Jackson, Mississippi; and it further appearing to the satisfaction of the court from the evidence that the said J.E. Pierce is the proper party upon whom process should be served in order to bring said defendant into court, and it appearing that the said defendant was duly summoned in accordance with law more than thirty days prior to this term of court by service of process upon said J.E. Pierce as agent for the said defendant, and that the said defendant has wholly made default herein; and it appearing to the court that the plaintiff is therefore entitled to judgment against the said defendant for the full amount sued for in the declaration.
"It is therefore ordered and adjudged that the plaintiff, W.C. Agnew, do have and recover of and from the said defendant, Brotherhood of Railroad Trainmen, the full sum of twelve hundred ninety-five dollars ($1,295), being accrued pension payments at thirty-five dollars per month from August 1, 1930, to September 1, 1933, and further, that the said plaintiff do have and recover of said defendants all costs herein, for all of which let execution issue."
Appellant, at a subsequent term, moved to vacate the judgment for an asserted want of valid service of process and contends that it was not competent for the court to hear any evidence, on the request for a judgment by default, in respect to the validity of the service of process; that the court is confined strictly to the averments of the declaration and to the return by the sheriff, so far as that inquiry is concerned, and that everything recited in the above-quoted judgment on the subject of process is of no effect, in so far as these recitals go beyond the averments of the declaration and the return of the sheriff on that subject; and Watkins Machine Foundry Co. v. Cincinnati Rubber Mfg. Co., 96 Miss. 610, 52 So. 629, is cited.
In this contention, and as to the effect of the cited case, appellant is in error. It is the first, and one of the most important, of all the duties of courts to see to it, before proceeding in any case, that the court has jurisdiction both of the subject-matter and of the parties. The performance of this duty requires the court, when a default judgment is requested, to examine the process and the returns thereon, and to be assured that the process and the manner of the service has been such as to give the defendant the notice required by law; and if the return of service, together with the other parts of the record then on file, leave any question of doubt or be not sufficiently explicit, it is not only proper but it is the duty of the court to hear, and to require to be produced, any and all such evidence, as will furnish the assurance aforesaid, and until so assured the court ought not to proceed. What was done by the court here in the respect mentioned and as shown by the recitals of the quoted judgment was thus in pursuance of the court's duty, and is precisely in keeping with the proper practice, as recognized by us in the recent case. Universal Life Ins. Co. v. Catchings (Miss.), 152 So. 817.
Appellant next contends that the concluding sentence of section 5246, Code 1930, expressly excludes the service of process upon appellant association except upon an attorney appointed by it under that section, and that since it has not appointed any such attorney for process in this state, it cannot be sued in this state. In Varnado v. Whitney, 166 Miss. 663, 147 So. 479, we held that appellant association is suable in this state, by force of our statutes applicable to such an association; and the rule, supported by an ample general course of authority, is that when an unincorporated association, suable as such under the statute, is engaged in business in the state wherein suit is brought and there is an absence, or failure, of any specific statutory method for the service of process on the association, the courts will treat such an association as a quasi corporation for the purposes of process, and will accept service of process upon any agent or representative of the association whose character in relation to the association is such that it could be reasonably expected that he would give notice of the suit to his association. Some of the cases on the subject are: Unkovich v. New York Cent. Railroad Co. et al., 114 N.J. Eq. 448, 168 A. 867; Sprainis v. Lietuwishika Evangelishka Liuterishka Draugystes, 232 Ill. App. 427; Fitzpatrick v. Rutter, 160 Ill. 282, 43 N.E. 392; Adams Exp. Co. v. Schofield, 111 Ky. 832, 64 S.W. 903; Hamilton v. Delaware Motor Trades, 4 W.W. Harr. (34 Del.) 486, 155 A. 595; Grand Lodge K.P. v. Massey, 35 Ga. App. 140, 132 S.E. 270; Slaughter v. American Baptist Publication Society (Tex. Civ. App.), 150 S.W. 224; Heralds of Liberty v. Bowen, 8 Ga. App. 325, 68 S.E. 1008; Adams Exp. Co. v. State, 55 Ohio St. 69, 44 N.E. 506.
The record shows that the head office of the appellant association is located at No. 820 Superior avenue, N.W., Cleveland, Ohio; and we hold that, since the association has not complied with the statute and appointed an attorney for service, it can be served in the same manner as is provided by section 4167, Code 1930, for service upon a foreign corporation doing business in this state, and that since the exhibits to the declaration show that J.E. Pierce was the person with and through whom the head office of the association dealt in respect to the very matter which forms the subject of this suit, he was a proper agent upon whom service of summons could be had. See Brotherhood of Railroad Trainmen v. Walker, 165 Miss. 698, 147 So. 655.
Appellant contends finally that it is essential under the statute last mentioned that a copy of the process shall be mailed by the clerk to the home office of the defendant by registered letter, Eminent Household v. Lundy, 110 Miss. 881, 71 So. 16, and that the record fails to show that this was done. That is true, but at the same time the record does not show that this was not done, the record is absolutely silent upon this feature. It seems that appellant has raised this question for the first time in this court. Its motion to vacate the judgment does not mention this particular feature as one of the asserted grounds upon which the court is requested to act in setting aside the judgment; appellant neither shows nor attempts to show that the copy was not mailed by the clerk as required by law. The presumption of law is that public officers have performed their duties. And, as said by us in the recent case, Walton v. Gregory, 154 So. 717, in respect to the judgments of courts of general jurisdiction, "unless the contrary affirmatively appears from the record, all jurisdictional facts are conclusively presumed to have existed, whether there be recitals in the record to show them or not, and this rule applies, although the judgment attacked was rendered by default, on constructive service of process alleged to be defective." The presumption mentioned is conclusive on a collateral attack; and on a direct attack, as is the case here, the presumption still stands unless the defendant affirmatively show that the defect complained of existed as a matter of fact. The defendant, appellant here, has not so shown, and, as already mentioned, has not even attempted to affirmatively so show.
Affirmed.