Alabama & Vicksburg Railway Co. v. Bolding

Campbell, C. J., delivered the opinion of the court. The only ground on which the motion to vacate the judgment could be sustained, is that it is void. Mere irregularities —questions, of error or no error — such as might cause a reversal on appeal, and for which the judgment would not be pronounced void, cannot be availed of by motion before the court which rendered the judgment. It cannot, at a term subsequent to the judgment, reverse or annul it for mere errors of law in the proceedings. Only this court can do that. The only ground, of those alleged, on which the judgment assailed could be held to be void, is that the defendant was not summoned as the law provides, so as to give the court jurisdiction to pronounce judgment against it. The sufficiency of the return of the summons on its face, and of the declaration on a demurrer, and the action of the court in allowing the judgment by default taken on the first return of the summons to be set aside, the return by the sheriff’s deputy to be amended, and judgment by default to be again taken and writ of inquiry to be then immediately executed and followed by judgment final, are all matters pertaining to the. practice of the court, with a party properly before it, and involve a question of error or not, and not of jurisdiction. Was the defendant duly summoned ?. If not, the judgment should be vacated. If the defendant was summoned as the law requires, no relief can be had. The solution of this question involves both fact and law. It is a question of fact whether or not the summons was served on Barber, as agent. The evidence is somewhat conflicting, and the circuit judge found the fact in favor of the plaintiff, and we are not willing to set aside this conclusion, believing it to be warranted. The questions of law are: the sufficiency of service of the summons by Mr. Gold, describing himself as deputy sheriff; the sufficiency of a service of summons on Barber, agent, and the validity of a judgment against the appellant on service of the summons issued against Alabama & Vicksburg Railroad Company. [263] Although Gold had not qualified as prescribed by law for deputy 'sheriffs, he was acting as such under appointment by the sheriff; was a defacto officer; and, between third persons, his acts must be held valid. Service of summons on an agent such as Barber was — a station agent — was sufficient to authorize judgment against the •corporation he represented. Code, § 1529. It matters not whether the office or principal place o'f business of the corporation was in the county in .which the action was brought •or not. The declaration and summons were against A. & V. Railroad Company. The summons was served on Barber, station agent of The Alabama & Vicksburg Railway Company, and the judgment by default was against the A. & V. Railroad Company, on which execution issued against A. V. Railroad Company. The claim is that a valid judgment could, not be given in this state of case under which to take the property of The A. & V. Railway Company. The question is as to the effect of the misnomer. There are cases which hold that one sued and served by a wrong name may disregard the summons. All agree that one summoned by a name not his own, and who appears and does not plead misnomer waives it, and is bound by the judgment in the wrong name. There is no sound reason for a distinction in the two classes of cases. The true view is, that one summoned by a wrong name, being thus informed that he is sued, although not correctly described by his true name, not availing of his opportunity to appear and object, whereby the true name would be inserted in the proceedings (Code, § 1581), should be precluded from afterwards objecting. Having remained silent when he might and should have spoken, he must ever afterwards be silent as to this matter. This view is sustained by the books. 1 Black on Judgments, §213; Freeman on Judgments; Welsh v. Kirkpatrick, 30 Cal., 202; The Lafayette Ins. Co. v. French, 18 How. (U. S.), 404; First Nat. Bank v. Jaggers, 31 Maryland, 38; Hoffield v. Board, [264] etc., 33 Kansas, 644; Waldrop v. Leonard, 22 So. Ca., 118; Smith v. Bowker, 1 Mass., 76; Medway Cotton Manu. v. Adams, 10 Mass., *360; Guinard v. Heysinger, 15 Ill., 288; Parry v. Woodson, 33 Mo., 347; Waterbury v. Mather, 16 Wend., 611; Smith v. Patten, 6 Taunton, 115. There is no distinction in this respect between natural persons and corporations. When a summons is served on the authorized agent of a corporation, it is served on the corporation. He is the corporation for this purpose, and it is because of this that a judgment by default may be rendered at the return-term against the corporation on whose agent summons is personally served, as we hold may be done. The case — The Lafayette Ins. Co. v. French, 18 How., 404 — cited above is, besides sustaining our view as to the misnomer, a decision directly in point as to the effect of service on an agent of a corporation. It binds the corporation just as if the service was on one designated by the charter to receive it, or authorized to do so by its power of attorney. It must he so, for process can be served on a corporation in no other way than by service on some officer or agent qualified by law for that purpose, and, “for the purpose of receiving such service, and being bound by it, the corporation is identified with such agent or officer.” Affirmed.