Great Southern Life Ins. v. Gomillion , 145 Miss. 314 ( 1927 )

^* Corpus Juris-Cyc. References: Insurance, 33CJ, p. 154, n. 71; Process, 32Cyc, p. 570, n. 59 New. The appellee filed a suit against the appellant, a nonresident insurance company, and had the process issued in the following form:

"State of Mississippi, to the Sheriff of the County of Leake in Said State:

"You are hereby commanded to summon the Great Southern Life Insurance Company of Houston, Tex., whose agent is Jodie I. Williams, of Leake county, Miss., if to be found in your county, to appear before the chancery court of the county of Leake in the state of Mississippi, at a term of said court to be held on the second Monday of March, A.D. 1926, at the courthouse, in the town of Carthage, Miss., on the first day of said term, then and there to plead, answer, or demur to the bill of J.N. Gomillion in the case of J.N. Gomillion v. Great Southern Life InsuranceCompany, to which it is defendant," etc.

The sheriff made the following return on said writ:

"I have this day executed the within writ personally by delivering a true copy of the same to the within named Jodie I. Williams, duly authorized agent of the within named defendant, Great Southern Life Insurance Company.

"This the 2d day of February, 1926.

"J.D. MILLS, Sheriff, "By J.W. PHILLIPS, Deputy Sheriff."

During the following term the complainant moved to amend the above return so as to show that the summons was served on the Great Southern Life Insurance Company personally by delivering to Jodie I. Williams, its lawful agent, a true copy of the said writ. The clerk did not mail a copy of the summons to the home office of the Great Southern Life Insurance Company at Houston, Tex., and it is contended that that was necessary to constitute a valid service of process under section 920, Code of 1906 (section 4094, Hemingway's Code), which statute is under the chapter on Corporations. Said section provides for service of process upon any foreign corporation by serving same "upon any agent of said corporation found within the county where the suit is brought, no matter what character of agent such person may be; . . . but in order that defendant corporation may also have effectual notice, it shall be the duty of the clerk to immediately mail a copy of the process to the home office of the corporation by registered letter, the postage and fees of which shall be taxed as other costs. The clerk shall file with the papers in the cause a certificate of the fact of such mailing, and make a minute thereof upon the docket, and no judgment shall be taken in the case until thirty days after the date of such mailing." Section 937 of the Code of 1906 (section 4115, Hemingway's Code), provides:

"The provisions of this chapter, when no limited by their terms, shall apply to all corporations whatever, where the subject-matter is not elsewhere prescribed."

The appellee, the complainant below, contends that the subject-matter is elsewhere prescribed, in section 5069, Hemingway's Code (section 2606, Code of 1906), the fourth paragraph of which reads as follows:

"It shall appoint as its agent or agents in this state some resident or residents thereof other than the said commissioner, such appointment to be made in writing, signed by the president and secretary or manager or general agent, and filed in the office of the commissioner, authorizing the agent to acknowledge service of process for and on behalf of the company, and consenting that service of process on the agent shall be as valid as if served upon the company, according to the laws of this state, and waiving all claim of error by reason of such service."

This last section is under the chapter on Insurance, the first and second paragraphs of which prescribe the condition under which insurance and other similar companies mentioned in the chapter, may be admitted and authorized to do business in this state. The third paragraph of this section provides that the service of process may be executed upon the insurance commissioner, and requires the company to file an agreement that it may be so served, and that any process which is so served shall be of the same force and validity as if served on the company, and the authority thereof shall continue in force irrevocable so long as any liability of the company remains outstanding in this state.

It is contended by the appellant that the case of EminentHousehold of Columbian Woodmen v. Lundy, 110 Miss. 881, 71 So. 16, is authority for the position that the clerk must mail a copy of the summons to the home office of the nonresident corporation to constitute a valid process. The opinion in that case does not disclose the reasoning by which the court reached its decision that there was no legal service on the defendant. In that case Lundy filed suit against the Columbian Woodmen, a fraternal insurance order, and the return showed that it was executed by "delivering to J.F. Guthrie, consul commander, and to Melton Lundy, agents and representatives of defendant, whose place of business is in Neshoba county, Miss., district No. 1 thereof, a true copy of this writ." That case does not disclose that Guthrie or Lundy, the agents, had been appointed under section 2069, Hemingway's Code, as agents to receive process. So far as the opinion of the court shows, it may have been the failure to comply with the requirements of this section that caused the decision of the court.

In the case of National Surety Co. v. Board of Supervisorsof Holmes County, 120 Miss. 706, 83 So. 8, second syllabus, it was held that — "The return of service upon a summons in a suit by a county against a foreign surety company guaranteeing by its bond performance of a road building contract of ``executed personally by delivering to Edgar Mayfield, agent of and for defendant, etc.,' was an insufficient showing of service of process to support a decree pro confesso, in view of Code 1906, section 937 (Hemingway's Code, section 4115), making section 920, Code 1906 (Hemingway's Code, section 4094), as to service upon foreign corporations in general, inapplicable where the subject-matter is elsewhere prescribed, and section 2562, Code of 1906 (Hemingway's Code, section 5027), defining insurance companies, and section 2606, clause 4, Code 1906 (Hemingway's Code, section 5069), as to agents of foreign insurance companies for service of process; since there was nothing in such return to show that service was had upon any person appointed and designated as such agent, nor that any such person was appointed by defendant."

And that — "Courts cannot take judicial notice that the agent of a foreign insurance company upon whom process is served is the agent appointed by the company to receive and acknowledge service of process, but proof must be made that such appointment was made and that the process was served upon this identical agent."

Such proof was made in the present case during the term of court at which the judgment was rendered, but subsequent to the return day. In the present case it therefore appears that the person upon whom process was actually served was the identical person whom the company had appointed under section 5069, Hemingway's Code (section 2606, Code of 1906). It is insisted, though, that the return did not show it on the return day, and it could not be subsequently made without notice, and that no notice was given the company of the proposed amendment. On motion to amend, the sheriff and his deputy testified as to exactly what was done before the court would allow the amendment.

We think the amendment could be made to show the real facts, and that there was no error in permitting the amendment to be made during the term. The service of process upon the agent was sufficient to bring the company into court, and, being in court, it was unnecessary to give it notice of any amendment of the return. See Lupkin Sons v. Russell, 108 Miss. 742, 67 So. 185, and cases cited therein. See, also, Howard et al. v.Priestly, Sheriff, 58 Miss. 21; Railway Co. v. Bolding,69 Miss. 255, 13 So. 844.

In the case of Fidelity Casualty Co. v. Cross, 127 Miss. 31, 89 So. 780, process was served upon the insurance company under the third paragraph of section 5069, Hemingway's Code (section 2606, Code of 1906), and it was contended that the insurance commissioner had failed to mail a copy of the process to the home office of the company, and that such was necessary under section 920 of the Code of 1906; that a default judgment in such case could not be upheld, where the company did not have actual notice of the pendency of such suit. We held that process was controlled by section 5069, Hemingway's Code (section 2606, Code of 1906), and that section 920, Code of 1906 (Hemingway's Code, section 4094), was not applicable, because the chapter on Insurance provides for the service of process in such case, and that by reason of section 937, Code of 1906 (section 4115, Hemingway's Code), the matter was prescribed elsewhere, within the meaning of said section.

There is abundant reason for holding that section 5069, Hemingway's Code (section 2606, Code of 1906), is exclusive, where service is had upon the company by delivering to either of the agents provided for in said section; that under the terms of the statute and the power of attorney in the record, in conformity thereto, in the present case, the company cannot complain that its agent did not give it notice of such service upon him. The statute provides, and so does the power of attorney, that service of process on the agent shall be as valid as service upon the company, according to the laws of this state. Of course, it may be that if a company has not complied with the law of the state, but is doing business in the state, in violation of the statute, or in default in compliance with its terms, it could be served under section 920, Code of 1906 (section 4094, Hemingway's Code), in which case it would be necessary to comply with that section.

The judgment of the lower court is affirmed.

Affirmed.