Watkins Machine & Foundry Co. v. Cincinnati Rubber Manufacturing Co.

52 So. 629, 96 Miss. 610

• Court: Mississippi Supreme Court
• Decided: March 15, 1910
• Status: Published

Opinion

ANDeesoN, I.,

after stating the facts as above, delivered the opinion of the court.

The judgment of the court below was erroneous. Section 3932, Code 1906, prescribes the manner in which process shall be served on a corporation defendant, which -may be in one of several ways, namely: “On tbe president or other head of the corporation, upon the cashier, secretary, treasurer, clerk, or agent of the corporation, or upon any one of the directors of such corporation,” etc. It is true the judgment recites that the defendant had been duly and legally served with process; and it is insisted that the presumption will be indulged in, from this recital in the judgment, that the court satisfied itself in some legal way that Bennett was one of the officers or agents of the company on whom process could be served under the statute. This contention is not sound. The judgment is based on the facts as they appear in the record. There is no authority of law for the court to go outside of the record to ascertain Bennett’s connection with the corporation. There was no issue before the court on which testimony could be taken to so ascertain. The finding in the judgment that the process was legally served was an erroneous conception of the law by the court, based on the record as made.

This is not a collateral attack on this judgment. It is a direct attack by appeal, which is the proper manner to avail of irregularities and errors like the one here complained of. Alabama, etc., Ry. Co. v. Bolding, 69 Miss. 255, 13 South. 844, 30 Am. St. Rep. 541.

'Reversed and remanded.