Order of Calanthe v. Armstrong , 7 Ala. App. 378 ( 1913 )

PELHAM, J.

This case is submitted on appellee’s motion to dismiss the appeal because not taken in time, and on the merits. Appellee insists that as the appeal was not taken within six months, as provided by section 2868 of the Code, his motion should prevail. But section 2868 of the Code was amended by an act approved August 26, 1909 (Laws 1909, p. 165)', extending the time within which appeals may be taken to one year from the rendition of the judgment. — Acts 1909, p. 165. The record shows the appeal to have been taken Avithin one year from the rendition of the judgment appealed from, and the appellee’s motion is denied.

The suit Avas against a corporation, and a judgment by default Avas rendered against it in the court beloAV, and the record shows that the summons Avas executed Dy service on C. A. Tuggle, “grand protector of said company.” The judgment entry recites that the judgment by default in the trial court was rendered on proof “that service Avas had in this cause by service on C. A. Tuggle, grand protector of defendant corporation, and that said G. A. Tuggle Avas grand protector of defendant corporation at the time of the service of the summons and complaint in this case.” There is nothing in this recital, and there is nothing othenvise set out in the transcript, from Avhich it would appear that the summons Avas served upon a person upon whom service could be legally had for and on behalf of the defendant, or that the court ascertained by proof that the person served Avas an officer or agent of the corporation, Avithin the meaning of that term as defined by section 5303 of the Code of 1907.

The record also shows the service of a branch summons and complaint to have been executed on the Secretary of State; but a compliance with the requirements of the statutes authorizing a valid service to be had on this officer is nowhere shown by the record, Avhether we construe the complaint to be against a corporation, such as is referred to by sections 4560 and 4562 of the Code, or the act approved April 24, 1911 (Acts 1911, p. 700 et seq.). The judgment by default can find no support because of the service of this process.

Tbe motion to dismiss is overruled, and the cause must be reversed for failure of the record to show service on such an agent or officer of the defendant as by law was authorized to receive service, or to show that the court ascertained by proof that the person served was such an officer or agent of the corporation, for this was necessary to authorize the rendition of a judgment by default against the defendant corporation. —Oxonna Bldg. Ass’n. v. Agee, 99 Ala. 571, 13 South. 279, and cases cited; Hoffman, Ahlers & Co. v. Ala. Dist. Co., 124 Ala. 542, 27 South. 485.

Reversed and remanded.