Manhattan Fire Insurance v. Fowler & Co.

76 Ala. 372

Opinion

SOMERYILLE, J

— The judgment in this canse must be reversed. It is a judgment by default against a defendant corporation, and there is no sufficient proof of the fact that the person upon whom the summons and complaint were served was an agent, or occupied such other relation towards the defendant as to justify service upon him under the statute. The mere return of the sheriff is insufficient. The record must show that the fact vt&s proved to the satisfaction of the court. Southern Express Co. v. Carroll, 42 Ala. 437 ; Oxford Ins. Co. v. Spradley, Ib. 24 ; Code, 1876, §§ 234-35.

The action is, furthermore, one in which no judgment final by default could properly have been rendered, without the intervention of a jury. A writ of inquiry was necessary to ascertain the value of the property which is alleged to have been destroyed by fire and insured against loss by the terms of the policy of insurance. The statute authorizes a judgment by default, without the intervention of a jury, only in “ actions fonnded on any instrument of writing ascertaining the plaintiffs’ demand.” — Code, 1876, §3032. The amount of plaintiffs’loss could not be known, without the aid of extrinsic evidence. It was not ascertained by the policy itself.— Warrick v. Banks, 67 Ala. 252 ; Porter v. Burleson, 38 Ala. 343 ; Connolly v. Ala. & Tenn. R. R. Co., 29 Ala. 373 ; 2 Brick. Dig. p. 135, §§ 61, et seq.

Reversed -and remanded.