Carpenter v. Employers Mutual Casualty Co. , 159 So. 2d 318 ( 1963 )

HARDY, Judge.

This suit was instituted as an action in tort against the defendants, plaintiff alleging that his vehicle was struck from the rear by an automobile belonging to defendant, Ellis M. Jolley, insured by defendant, Employers Mutual Casualty Company.

Service was attempted to be made upon the defendant insurer through the Secretary of State, to which defendant insurer excepted and prayed that such service be quashed, upon the premise that the Secretary of State was not defendant’s agent for service of process, inasmuch as defendant was not doing business in the State of Louisiana.

There was judgment in favor of defendant dismissing plaintiff’s action, from which he has appealed.

We think the judgment is erroneous to the extent that it directed the dismissal of plaintiff’s action when the only relief sought was that the service be quashed. The proper ruling would have been to have quashed the attempted service and ordered the making of a legal service upon plaintiff-appellant.

For the reasons assigned, the judgment appealed from is annulled, avoided, set aside and reversed, and

It is now ordered that this cause be remanded to the Honorable the Twenty-Sixth Judicial District Court of Bossier Parish, Louisiana, for further proceedings in accordance with the opinion expressed herein. Costs of this appeal are assessed against defendant-appellee, and it is ordered that all other costs shall await final determination hereof.