National Surety Co. v. Board of Supr's

HoldeN, J'., delivered the opinion of the court. It is urged that we erred in our decision of this case, National Surety Co. v. Board of Supervisors of Holmes County, 81 So. 792. It will be observed from our'previ-our opinion that we held that the board of supervisors had no authority to sue in its. own name for the benefit. of the county or any part of it, but that such suits must be instituted in the name of the county,, The position taken and urged now by the appellee is that our holding is unsound for the reason that the suit in the name of the board for the benefit of the county was merely a misnomer which should have been objected to and taken advantage of by the defendant in the lower court; and the failure to object then, so that proper, amendment could be made, amounts to a waiver and precludes the appellant from raising the'- point on appeal, 'because the real party complainant, the county, was in court though not named as complainant in the pleading. After due consideration of the suggestion, we. must confess the contention of appellee is right, and our former opinion to that extent is withdrawn and annulled. This conclusion is supported by the following authorities: Anthony et al., Commissioners, v. Bank of Com [729] merce, 97 U. S. 374, 24 L. Ed. 1060; 30 Cyc. 28, note; 15 C. J. section 379, pp. 665, 666; 15 Ency. Pl. & Pr. 475; Fountain v. County of Pitt, 171 N. C. 113, 87 S. E. 990; Union Pacific Railroad v. Saline County, 69 Kan. 278, 76 Pac. 865; Code of 1906, section 775; Hemingway’s Code, section 558; Porter et al. v. Cresson et al., 10 Serg. & R. (Pa.) 257; Andrew Stephens on Pleading, section 200. But*the decree of the lower court- must he reversed •upon another ground-presented by the appellant which' we deemed unnecessary to pass upon in our former opinion; that is, that no process was served On the defendant below. The return on the summons reads as follows: ‘ “Executed personally by-delivering to Edgar Mayfield, agent of and for the National Surety Company, a corporation of the state of New.York, a true copy of this writ July 3, 1918, and after diligent search and inquiry failed to find the' Burton Construction Company and "W. F, Allen in this county this July 3, 1918. G. S. Beall, Jr., Sheriff, by J. C. Reed, D. S.” It is contended by the appellant that it was not served with process as .required by section 920, Code of 1906 (section 4094, Hemingway’s Code), in that the return do.es not sufficiently show the kind of service obtained .under said section, nor does the record show that the appellant foreign corporation was mailed a copy of the process as required by1 the- statute. And it is true the record does not show a compliance with the statute in some .respects. But the appellee, in answer to this contention, makes the point that it was not necessary to obtain service upon the defendant foreign corporation in the manner provided by said section 920, Code of 1906. (section 4095, Hemingway’s Code), because section 937 of the same chapter, Code of 1906 (section 4115, Hemingway’s Code), provides that the provisions of the chapter shall not apply where the subject-matter,is else [730] where prescribed, viz., that under section 2562, Code of 1906 (section 5072, Hemingway’s Code), the appellant surety company is declared to be an insurance company; and that by the fourth clause of section 2606 of the same chapter, Code of 1906 (section 5069, Hemingway’s Code), it appears that service may be obtained upon the agent of such insurance company. However, if seems clear to us that the appellant surety company is declared by statute to be a foreign insurance company which is required to appoint an agent in the state to receive and acknowledge service of process for and on behalf of the company, and that process by the complainant below could only be served upon the designated agent of the foreign insurance company. This is the authorized way of bringing the foreign insurance company into court. It nowhere appears in this record that service was had upon any person appointed ■ and designated at such agent, nor does it appéar that any such person was appointed by the appellant' insurance company. Section 2606, Code of 1906 (section 5069, Hemingway’s Code). Therefore it follows that no legal service compelling the appearance of the appellant was obtained in this case, and consequently the decree pro confesso was error. We are much inclined to believe, though we do not decide, that the service of process even under said section 920, Code of 1906 (section 4094, Hemingway’s Code), was insufficient in this dase to support a decree pro confesso. But certainly this «record does not show that the appellant foreign insurance company appointed the said Mayfield, who was served, its agent, under the provisions of the said secion 2606, .Code of 1906 (section 5069, Hemingway’s Code), and of course we cannot take judicial notice of any such appointment,' if any there was. Proof must be made of the' appointment of the agent to receive process and that thé'process wa's served [731] upon this identical agent. Globe Ins. Co. v. Sayle, 107 Miss. 169, 65 So. 125. For the reasons enumerated above, the suggestion of error is sustained in part and overruled in part; the judgment rendered here dismissing the complainant’s ■'bill is set aside and annulled'; and the decree of the lower court is reversed and the cause remanded. Reversed and remanded.