The opinion of the Court was delivered by
Moses, C.J.
At November Term, 1875, this case, with leave of the Court, was to be submitted on the brief and argument. The points and authorities on the part of the respondents were not filed until the April session. Hence the delay in the decision. Whenever hereafter the Court allows the submission of a cause, if the printed argument on either side is not presented within the time fixed by the order, it will proceed to render judgment on the brief and papers.
In the case at bar it appears that one Sehaub, styling himself, as he was, the General Agent of the Southern Porcelain Manufacturing Company, a corporation chartered by the State and carrying on business within its limits, on January 8, 1868, drew a draft for $4,254.56 on R. B. Bullock, addressed to him as President of the said company, (which office he then filled,) payable to J. M. Clark & Sons, three months after date, which, on presentment, was duly accepted aud afterwards protested for non-payment.
A summons was issued on the said draft, directed to James Hope, President, and George Sehaub, General Agent, of the Southern Manufacturing Company, accompanied with a complaint, both dated February 3, 1871, and entitled “John M. Clark, Amos H. Clark and John W. Clark, copartners in trade, under the name and style of J. M. Clark & Sons, plaintiffs, vs. The Southern Porcelain Manufacturing Company, defendants,” which, on the 8th and 9th of the same month, were personally served on Hope and Sehaub. The plaintiffs, in their complaint, set forth the said draft, made by its drawer in his official character, on the said Bullock as such President, its acceptance, non payment and protest, and “demand judgment against the company, defendants, for the said principal sum, interest and protest.” The summons, addressed, as already stated, to Hope, President, and Sehaub, General Agent of the said company, styling it by name, required them to answer the complaint in the action within twenty days after service, and, on failure, “the plaintiffs will take judgment against you for the sum of $5,090.64, with interest at the rate of seven per centum from the third day of February, 1871, and costs.” No notice of appearance having been given or answer filed, judgment by default was entered on 18th of March, 1871, by the said plaintiffs, against the [44]*44said Southern Porcelain Manufacturing Company, for the sum demanded.
On March 2, 1875, notice was served on the respondents that the appellant, on a day named, would move before His Honor Judge Carpenter to set aside the judgment recovered and entered in the action, upon the following grounds:
1. That the only summons ever issued or served was not directed to the defendant, the Southern Porcelain Manufacturing Company, and did not require the- said company (the defendants) to answer the complaint of the plaintiffs and serve a copy of their (defendants’) answer as provided by law, but was directed to James Hope, President, and George Schaub, General Agent of said company, and required them to answer said complaint, and serve a copy of their answer to the same.
2. That Bullock, late President, and Schaub, General Agent of said company, had not, nor had .either of them, any authority to contract on behalf of the said, compauy the debt sued for in the action.
3. .That if they were even authorized to contract the said debt on behalf of the said company, yet they.were not, nor was either of them, ever authorized to secure such debt to the plaintiffs by a draft drawn or accepted on behalf of said compauy.
4. That the omission of the company to defend the action in the case against them was caused by accident and mistake on the part of their President, James Hope.
After a full hearing, the motion was dismissed by the Judge below, and the argument here has failed to impress us with any error in his conclusion.
The judgment is entered up in proper form against the company, who, it was clear to the President, by the process served upon him, was the party against whom it issued, and of whom a recovery of the amount due on the draft was sought. If there could be any reasonable doubt that the language of the summons and complaint were not sufficient to impart a knowledge of what they proposed, it is removed by the affidavits of the President himself and those of Mr. J. L. Addison and Mr. H. W. Addison, which show beyond question that the President was well advised of the purpose designed by the summons. Both the summons and complaint were served on the person who by the 157th Section of the Code is [45]*45designated as the proper party to be served “ if the suit be against a corporation.” There was, then, at least, a formal and proper service, and the question really to be determined on this first ground is whether the want of technical form in the,summons amounts to such a legal defect as could not be cured by the name of the company through its President? The summons was properly endorsed in the title of the cause, according to the thirteenth rule of the Circuit Court, and, besides, expressed on the face of it the parties, plaintiffs and defendant, referring by name to the company as defendant. The President, unless there be another head of a corporation, is recognized as the proper person on whom process intended to bring it into Court must be served. If he refrains, after his knowledge of the purpose of the process, to cause his company to be represented, that its defense, if any, may be duly made, the consequences of his neglect must fall upon those who constituted him their agent to act in their behalf.
In his affidavit of March 1, 1875, the President refers to the summons and complaint served upon him as the institution of a suit against the company. In that of the 22d day of the same month he says that, although he had no personal knowledge of the transactions between the plaintiffs and the said Bullock, President of the company, which resulted in the indebtedness evidenced by the draft, when he was served with the process, he was informed by Schaub that the claim was valid and could not be successfully opposed, on which he determined not to appear and make defense for the company; that afterwards he concluded to defend and employ Mr. Carroll as counsel for the company. His first affidavit alleges that by some oversight or neglect the papers in this case were not sent to his attorney, with process served, in other causes against the company at the same time, and thus the default in appearance and answer occurred. Mr. J. L. Addison, in his affidavit of June 26, 1875, says that the draft and another paper of the said company, being in his hands for collection, before suit he was informed by its officers there would be no defense, and, after service of the summons and complaint, in a conversation with Mr. Hope, the President, Mr. Schaub, the General Agent and Superintendent, in regard to the case, he was assured by them, and also by Mr. H. W. Addison, the attorney for the company, that no answer would be filed, as no valid defense could be made, and that the [46]*46notes were given for a valuable consideration; that since the judgment he has been repeatedly assured by the officers of the company that the debt would be first paid after a certain cause of the National Bank of Augusta against the company was disposed of, and that as late as 14th December, 1874, he was assured by the attorney of the company that by the 1st of February ensuing the judgment would be satisfied. On this assurance the sale of the property by the Sheriff was postponed.
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The opinion of the Court was delivered by
Moses, C.J.
At November Term, 1875, this case, with leave of the Court, was to be submitted on the brief and argument. The points and authorities on the part of the respondents were not filed until the April session. Hence the delay in the decision. Whenever hereafter the Court allows the submission of a cause, if the printed argument on either side is not presented within the time fixed by the order, it will proceed to render judgment on the brief and papers.
In the case at bar it appears that one Sehaub, styling himself, as he was, the General Agent of the Southern Porcelain Manufacturing Company, a corporation chartered by the State and carrying on business within its limits, on January 8, 1868, drew a draft for $4,254.56 on R. B. Bullock, addressed to him as President of the said company, (which office he then filled,) payable to J. M. Clark & Sons, three months after date, which, on presentment, was duly accepted aud afterwards protested for non-payment.
A summons was issued on the said draft, directed to James Hope, President, and George Sehaub, General Agent, of the Southern Manufacturing Company, accompanied with a complaint, both dated February 3, 1871, and entitled “John M. Clark, Amos H. Clark and John W. Clark, copartners in trade, under the name and style of J. M. Clark & Sons, plaintiffs, vs. The Southern Porcelain Manufacturing Company, defendants,” which, on the 8th and 9th of the same month, were personally served on Hope and Sehaub. The plaintiffs, in their complaint, set forth the said draft, made by its drawer in his official character, on the said Bullock as such President, its acceptance, non payment and protest, and “demand judgment against the company, defendants, for the said principal sum, interest and protest.” The summons, addressed, as already stated, to Hope, President, and Sehaub, General Agent of the said company, styling it by name, required them to answer the complaint in the action within twenty days after service, and, on failure, “the plaintiffs will take judgment against you for the sum of $5,090.64, with interest at the rate of seven per centum from the third day of February, 1871, and costs.” No notice of appearance having been given or answer filed, judgment by default was entered on 18th of March, 1871, by the said plaintiffs, against the [44]*44said Southern Porcelain Manufacturing Company, for the sum demanded.
On March 2, 1875, notice was served on the respondents that the appellant, on a day named, would move before His Honor Judge Carpenter to set aside the judgment recovered and entered in the action, upon the following grounds:
1. That the only summons ever issued or served was not directed to the defendant, the Southern Porcelain Manufacturing Company, and did not require the- said company (the defendants) to answer the complaint of the plaintiffs and serve a copy of their (defendants’) answer as provided by law, but was directed to James Hope, President, and George Schaub, General Agent of said company, and required them to answer said complaint, and serve a copy of their answer to the same.
2. That Bullock, late President, and Schaub, General Agent of said company, had not, nor had .either of them, any authority to contract on behalf of the said, compauy the debt sued for in the action.
3. .That if they were even authorized to contract the said debt on behalf of the said company, yet they.were not, nor was either of them, ever authorized to secure such debt to the plaintiffs by a draft drawn or accepted on behalf of said compauy.
4. That the omission of the company to defend the action in the case against them was caused by accident and mistake on the part of their President, James Hope.
After a full hearing, the motion was dismissed by the Judge below, and the argument here has failed to impress us with any error in his conclusion.
The judgment is entered up in proper form against the company, who, it was clear to the President, by the process served upon him, was the party against whom it issued, and of whom a recovery of the amount due on the draft was sought. If there could be any reasonable doubt that the language of the summons and complaint were not sufficient to impart a knowledge of what they proposed, it is removed by the affidavits of the President himself and those of Mr. J. L. Addison and Mr. H. W. Addison, which show beyond question that the President was well advised of the purpose designed by the summons. Both the summons and complaint were served on the person who by the 157th Section of the Code is [45]*45designated as the proper party to be served “ if the suit be against a corporation.” There was, then, at least, a formal and proper service, and the question really to be determined on this first ground is whether the want of technical form in the,summons amounts to such a legal defect as could not be cured by the name of the company through its President? The summons was properly endorsed in the title of the cause, according to the thirteenth rule of the Circuit Court, and, besides, expressed on the face of it the parties, plaintiffs and defendant, referring by name to the company as defendant. The President, unless there be another head of a corporation, is recognized as the proper person on whom process intended to bring it into Court must be served. If he refrains, after his knowledge of the purpose of the process, to cause his company to be represented, that its defense, if any, may be duly made, the consequences of his neglect must fall upon those who constituted him their agent to act in their behalf.
In his affidavit of March 1, 1875, the President refers to the summons and complaint served upon him as the institution of a suit against the company. In that of the 22d day of the same month he says that, although he had no personal knowledge of the transactions between the plaintiffs and the said Bullock, President of the company, which resulted in the indebtedness evidenced by the draft, when he was served with the process, he was informed by Schaub that the claim was valid and could not be successfully opposed, on which he determined not to appear and make defense for the company; that afterwards he concluded to defend and employ Mr. Carroll as counsel for the company. His first affidavit alleges that by some oversight or neglect the papers in this case were not sent to his attorney, with process served, in other causes against the company at the same time, and thus the default in appearance and answer occurred. Mr. J. L. Addison, in his affidavit of June 26, 1875, says that the draft and another paper of the said company, being in his hands for collection, before suit he was informed by its officers there would be no defense, and, after service of the summons and complaint, in a conversation with Mr. Hope, the President, Mr. Schaub, the General Agent and Superintendent, in regard to the case, he was assured by them, and also by Mr. H. W. Addison, the attorney for the company, that no answer would be filed, as no valid defense could be made, and that the [46]*46notes were given for a valuable consideration; that since the judgment he has been repeatedly assured by the officers of the company that the debt would be first paid after a certain cause of the National Bank of Augusta against the company was disposed of, and that as late as 14th December, 1874, he was assured by the attorney of the company that by the 1st of February ensuing the judgment would be satisfied. On this assurance the sale of the property by the Sheriff was postponed. That Hope and Schaub knew of the judgment since March, 1871; that H. W. Addison, the counsel of the company, knew of it; and that in many instances, from its entry, some of the stockholders pronrsed if the bank judgment was set aside the plaintiffs should be paid at once. The affidavit of Mr. H. W. Addison confirms that of Mr. J. L. Addison as to the knowledge of Hope of the character of the -debt and its validity in the following expressive terms: “In the almost multitudinous consultations with James Hope in connection with the cases above named, (that is, those where defense was set up, and also the case of the bank above mentioned against the said company.) he (Hope) never intimated in any manner that there ever existed any defense to the claim of J. M. Clark & Sons, or that any attempt would be made to attack said judgment, but left the impression upon him at the time he was retained in the other cases that he desired J. M. Clark & Sons paid; that he thinks it was some time during the past year that he heard for the first time of an attempt to upset the judgment of J. M. Clark & Sons.”
The circumstances detailed in the affidavit referred to exhibit the great laches of which the President was guilty in regard to the said suit. A forbearance to appear and answer could well consist with his duty if he believed at the time that the debt was valid and admitted of no defense; but how could he reconcile it with his duty to his company and the trust which his relation to it imposed, that, concluding there was a valid defense, he transmitted (as he supposed he had done) the papers to Mr. Carroll, in February, 1871, for the purpose of preparing it, and yet until a few days before 1st March, 1875, he instituted no inquiry as to the condition of the case, expressed no astonishment at not being called upon by his counsel for the facts on which it was to rest and the testimony to sustain it, and, above all, had never been consulted as to the character of his answer, which necessarily was to be made under oath ? Must he not necessarily have known that no answer had been filed?
[47]*47Stranger still, according to his statement, nearly four years had elapsed before he was aware that a judgment had been obtained against the company. In the face of these facts, can their omission to defend the action be attributed “to accident, inadvertence and mistake, or, at the least, to excusable negligence on the part of their President?”
If the exception now taken to the summons had been made on appearance and in regular form, leave would have been granted to amend, that it might be made to conform to the complaint and the intention of the plaintiffs as to the real party sought to be brought before the Court. The respondents are not to be placed in a worse condition because, by the neglect of the company, no appearance or defense was made. The letter and the spirit of the Code provide the fullest means for perfecting the pleadings, so that the true and real issues between the parties may be the more readily ascertained. Mr. Pomeroy, in his new and able treatise on civil remedies, (a work well worthy the careful attention and consideration of the profession,) in Section 565, says: “The new procedure, from its dread lest the proper requirements as to form should degenerate Into mere technicalities, and from its opposition to the decision of controversies upon points not involving the merits, has made most ample and liberal provision for amendments.”
By the 196th Section of the Code of this State, the Court has power to amend after judgment, in the same manner as it has before, any pleading, process or proceeding in the cause, to correct any mistake in the name of a party, or in any other respect. It would be certainly, if necessary, more in furtherance of justice now to permit an amendment of the summons to conform to its true intent rather than to set aside a judgment which has stood for four years without complaint, that the Statute of Limitations may be interposed to defeat a claim the justice of which has not been disputed until questioned by the motion in the Court below.
What we have said disposes of the first and fourth grounds on which the application is founded. The second and third comprise matters of fact, which would have been proper subjects for defense if submitted by way of answer, but into which we are forbidden to look for the purpose of vacating the judgment.
The motion is dismissed.
Wright, A. J., and Willard, A. J., concurred.