ÆTNA INS. CO. v. EARNEST

(112 So. 145) ÆTNA INS. CO. v. EARNEST. (6 Div. 861.) (Supreme Court of Alabama. March 24, 1927.) Appearance <&wkey;>26 — General appearance after default judgment held waiver of defect in service of summons. After default judgment in an action on insurance policy, defendant appeared generally and moved that judgment be set aside and new trial granted on ground that it was wrongfully deprived of opportunity to make defense. Held, such appearance was waiver of defect in service of summons. Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster, Judge. Action on a policy of fire insurance by George M. Earnest against the -Etna Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals, under Code 1923, § 7326. Affirmed. Monette & Taylor, of Birmingham, and Reuben H. Wright, of Tuscaloosa, for appellant Judgment by default cannot properly be entered against a corporation, where the sheriff’s return simply shows that service was had on a given person as agent without proof of actual agency of the person served. Ind. Order, etc., v. Walter, 17 Ala. App. 66, 81 So. 844; Farmers’ State Bank v. Inman, 208 Ala. 281, 94 So. 105; Ind. Pub. Co. v. Amer. Press Ass’n, 102 Ala. 475, 15 So. 947; Hoffman v. Ala. Dist. Co., 124 Ala. 542, 27 So. 485; Oxanna Bldg. Ass’n v. Agee, 99 Ala. 571, 13 So. 279. Bealle & Pearson, of Tuscaloosa, for appel-lee. A motion to set aside a default judgment upon grounds other than jurisdictional enters a general appearance, and validates the judgment as to all defects in the service of the summons. Sanatorium v. Vanston, 14 N1. M. 436, 94 P. 945; Miles v. Goodwin, 35 Ill. 54; Boulware v. C. & A. Ry., 79 Mo. 494; Gant V. C., R. I. & P. R. Co., 79 Mo. 502; Coad v. Coad, 41 Wis. 23; Security B. & T. Co. v. Boston Co., 126 Cal. 418, 58 P. 941, 59 P. 296; Maclay Co. v. Meads, 14 Cal. App. 363, 112 P. 195, 113 P. 364; Gilbert-Arnold L. Co. v. O’Hare, 93 Wis. 194, 67 N. W. 38; Fisk v. Thorp, 60 Neb. 713, 84 N. W. 79; Pry v. H. & St. J. R. Co., 73 Mo. 123; 2 Enel. P. & P. 656. [MAJORITY — SOMERVILLE, J.] SOMERVILLE, J. Conceding, without deciding, that the sheriff’s return indorsed on the summons was not sufficient to show a valid service on the defendant, Ætna Insurance Company, even under section 9421 of the Code (see Farmers’ State Bank v. Inman, 208 Ala. 281, 283, 94 So. 105, and Independent Order, etc., v. Walker, 17 Ala. App. 66, 81 So. 844), we are of the opinion that the defect was waived by the defendant, when it appeared generally and filed a motion to set aside the judgment and -grant defendant a new trial on the grounds of surprise, mistake, and fraud. It will be observed that the motion admitted that: “A copy of the summons and complaint in this cause was served on an agent of defendant.” It then recites that negotiations for a settlement were entered into between the parties, and while these negotiations were under way, and without notifying defendant that they were considered at an end, plaintiff, on February 1, 1926, took a judgment by default against defendant; and that: “On account of the above-described acts and conduct on the part of the plaintiff, the defendant was prevented by surprise, accident, mistake, or fraud, without fault on its part, from making its defense to this cause of' action.” In thus appearing and attempting to set aside- the judgment because it had been wrongiully deprived of the opportunity to make its defense, and in asking for a new trial, the defendant recognized the validity of the judgment and of the service of summons, and assumed a position wholly inconsistent with its now asserted right to vacate the judgment for want of legal execution of the summons. Tlie subject is discussed quite fully, with a review of the authorities, in Security Loan & Trust Co. v. Boston, etc., Co., 126 Cal. 418, 58 P. 941, 59 P. 296, and Belkman v. Charlton, 25 Or. 41, 34 P. 758. The general rule is thus stated in 4 Corp. Jur. 1364, § 64: “Where a judgment has been rendered by the court without jurisdiction of the person, a general appearance after such judgment waives all objection to the jurisdiction of the court over the person. Thus a general appearance by defendant after final judgment waives any and all defects and irregularities in the service of process and return, just as fully as it does where such appearance is entered before final judgment.” And the same text (1365, § 65) cites many eases to the proposition that: “As to the immediate parties to the action, a general appearance validates a judgment that was theretofore absolutely void for want of jurisdiction.” There are a few eases to the contrary, as in Bennett v. Supreme Tent, 40 Wash. 431, 82 P. 744, 2 L. R. A. (N. S.) 389, but we prefer to follow the great weight of authority, which is based, we think, on sound principles. The judgment appealed from will therefore be affirmed. Affirmed. ANDERSON, O. J., and THOMAS and BROWN, JJ., concur. <§=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes