Fidelity & Casualty Co. v. Cross , 127 Miss. 31 ( 1921 )

Ethridge, J.,

delivered tlie opinion of the court.

The appellee was plaintiff below and the appellant defendant. The plaintiff brought suit against the defendant on an insurance policy and served process on the state insurance commissioner under the provisions of section 2606, Code of 1906 (Hemingway’s Code, section 5069). This process was served nearly three months before the return day of the court. There was no appearance in the court by the defendant, and a default judgment was taken, and a writ of inquiry issued to assess the amount due the plain - tiff under the terms of the policy, and verdict rendered thereon, upon Avhich judgment was entered, and the court adjourned without any motion being made to set aside or vacate the judgment.. Some time after the court adjourned the defendant filed an appeal bond and brings the record before ns.

The appellant contends here that in addition to the service of process against the insurance commissioner the clerk of the court is required to also send a copy of the summons directed to the defendant, which is a foreign corporation, under the terms' of section 920, Code of 1906 (Hemingway’s Code, section 4094) ; and that, inasmuch as that section provides that no judgment can be rendered until the expiration of thirty days after the mailing by the clerk of such copy of the summons, the court had no authority in this case to enter judgment.

The question presented for decision is whether the provisions of section 2606, Code of 1906 (Hemingway’s Code, section 5069), are sufficient when the process is served upon the insurance commissioner as an attorney in fact. The third clause of this section reads as follows:

“It shall, by a duly executed instrument filed in his office, constitute and appoint the commissioner of insurance, and his successor, its true and lawful attorney, upon whom all process in any action or legal proceeding against it may be served, and therein shall agree that any process against it which may be served upon its said attorney shall be of tbe same force and validity as if served on tbe company, and tbe authority thereof shall continue in force irrevocable so' long as any liability of tbe company remains outstanding in this state. The service of such process shall be made by leaving a copy of the same in the hands or office of the said commissioner. Copies of such instrument certified by the said commissioner shall be deemed sufficient evidence thereof, and service upon such attorney shall be deemed sufficient service upon the principal.”

It will be seen from this clause that the company is required to agree that the commissioner of insurance is the true and lawful attorney in fact, upon whom all process in any action, or legal proceeding against it may be served, and therein shall agree that any process against it may be served upon its said attorney, and shall be of the same force and validity as if served on the company.

Section 920, Code of 1906 (Hemingway’s Code, section 4094), reads as follows:

“Process may be served 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; and in the absence of an agent, it shall be sufficient to serve the process upon any person, if found within the county where the suit is brought, who represented the corporation at the time of the transaction out of which the suit arises took place, or if the agency through which the transaction was had be itself a corporation, then upon any agent of that corporation upon whom process might have been served if it were the defendant. The officer serving the process shall state the facts, upon whom issued, etc., in his return, and service of process so made shall be as effectual as if a corporation of this state were sued, and the process has been served as required by law; 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, Code of 1906 (Hemingway’s Code, section 4115), being a part of the chapter containing section 920, Code of 1906 (Hemnigway’s C-ode, section 4094), reads as follows:

“The provisions of this chapter, when not limited by their terms, shall apply to all corporations whatever, where the subject-matter is not elsewhere prescribed.”

By section 2569, Code of 1906 (Hemingway’s Code, section 5034), it is provided that when legal process is served upon the commissioner for a foreign company under the provisions of section 2606, Code of 1906 (Hemingway’s Code, section 5069), he will forthwith notify the company of such service by letter prepaid and directed to its secretary, and shall within two days after such service forward a copy of the process served upon him to said secretary; but it further provides that failure of the commissioner to notify the company shall not affect the validity of such service, but shall subject him to liability on his bond for such damage as the company shall suffer thereby.

We are of the opinion that the service provided under the terms of section 2606, Code of 1906 (Hemingway’s Code, section 5069), is sufficient, and that section 920, Code of 1906 (Hemingway’s Code, section 4094), is not applicable in this case, for the reason that by section 937, Code of 1906 (Hemingway’s Code, section 4115), this is a provision which makes the matter prescribed elsewhere within the meaning of that section. In other words, as to foreign insurance companies, the service under section 2606, Code of 1906 (Hemingway’s Code, section 5069), is sufficient. In the present case the company filed the appointment of the insurance commissioner as its attorney in fact, as required by this section, and for the purpose of suit the commissioner is, under the terms of the statute, the alter ego of the company.

In addition to these observations, there is nothing in the record to show us that the company failed to receive the process which the insurance commissioner is required to mail to it, and we are bound to presume, in the absence of a showing to this effect, that that officer did his duty. We do not mean to say that the provisions of section 920, Code of 1906 (Hemingway’s Code, section 4094), would not be applicable if the insurance company had not appointed the insurance commissioner its attorney in fact; but as it has appointed him the company cannot contend that service upon him is sufficient. The judgment will therefore be affirmed.

, Affirmed.