Continental Insurance v. Mansfield

Citations

• 45 Miss. 311

Syllabus

<p>1. Process—return of service of summons on foreign insurance company. — A return by a sheriff on a summons commanding him to summon “The Continental Insurance Company of the city of New York,” in these words, “ Received and executed on D. N. Barrows and George A. Smythe, agents, personaUy, and copy delivered October 30,1867,” is not a good return of service, and did not authorize judgment by default against defendant, it not appearing in the declaration that defendant -is a foreign insurance company and a corporation, nor that D. N. Barrows, the agent of defendant named in the policy of insurance, is the duly authorized agent of the company, as required by sec. 11, p. 303, Rev. Code of 1857, and the record showing no proof of the jurisdictional facts, either by return of the sheriff, or the certificate of the auditor under art. 62, p. 305, Rev. Code of 1857, which facts or their equivEtlent are necessary to a valid judgment by default in such case.</p> <p>2. Same —what declaration should show as to the character of defendant and its agent. — In a'suit against a foreign insurance company, in order to obtaixr jurisdiction to render judgment by default, upon service of summons on an agent, according to art. 57, p. 303, Rev. Code of 1857, tlxe declaration should distinctly aver-that the defendant is a foreign insurance company and a corporation, and that a certain person is its agent duly appointed, according to the above-mentioned statute, and authorized to be served, with process, for the company.</p> <p>3. Same —what the summons should contain.—The summons should conform in such case to the declaration, in describing the defendant and agent to be served.</p> <p>i. Same—requisites to a valid judgment by default.—A full return by the sheriff and the auditor’s certificate in the record of a judgment by default, would seem to be the dictate of prudence, if not absolutely necessary in this class of cases.</p>