I concur in the opinion of the Chief Justice, that a person seeking, by common law certiorari, to avoid a judgment obtained against him, in a case like the present, should show, in his application for the writ that he has a meritorious defense to the action which he had no opportunity to make. My position is this : Certiorari is a discretionary writ designed to accomplish justice; and although the proceedings of the inferior tribunal, sought to be reviewed, which resulted in the judgment complained of, abound in errors and irregularities which it is the nature of this remedy to redress, *496yet, if it should appear that the judgment sought to be avoided is manifestly the same as would have been obtained had the proceedings been strictly legal and regular, the court would not lend its aid, by this discretionary writ, to set it aside. It would be opposed to the purpose for which the remedy was invented, (which, as I have indicated, is to enforce substantial justice and prevent injustice), to permit it to be used to avoid proceedings which involve no real detriment to the party moving. .This being the spirit and purpose of certiorari, I think the applicant for it, in a case like this, should show, in his application, under oath, to the judge to whom he applies, not only the errors complained of, but, as terms upon which the discretion of the judge will be exercised in favor of awarding the writ, that he has a meritorious defense which he had no reasonable opportunity to make. This is the rule, as I understand it, which equity has adopted when her courts are invoked to vacate judgments as having been unlawfully obtained; and the same spirit pervades our several statutory provisions for reviving litigation once determined by final judgment. If it is omitted, the writ of certiorari will be the efficient means of setting litigation on foot and accomplishing the vacation of judgments for irregularities which wrought no substantial injury whatever — ends opposed to the spirit of the remedy. I think the judge, in granting the writ without this showing, grants it improvidently. Nor does the discretion stop with the judge who awards the writ. When the proceedings come on before the court, the court, if moved thereto, may inquire and determine whether it was improvidently granted or not, and finding that it was, may quash it for that reason. In the present case, if my view is right, the petition is defective, for non-conformity to the rule I express. The writ should not have been granted in the first instance, and being granted, the court, if it had been moved thereto, should have quashed it. But no such motion was made. The parties tried the cause upon the merits of the proceedings before the justice of the peace, brought up for review in return to the certiorari. The question, therefore, as to the sufficiency of the showing made in the petition for the writ, in respect of the matter above discussed, is not before us for revision. There was a motion in the *497circuit court to quash, the writ which was granted, but that motion went to the merits or validity of the judgment sought to be set aside, and not to the quashing of the writ as having been improvidently granted on account of the omission I have suggested. The writ being retained for hearing and disposition upon its merits, 1 concur in the opinion of Justice Coleman as to the rules and principles which govern its disposition.
It is insisted, in the opinion of the Chief Justice, that a j udgment against a corporation, • rendered upon the sheriff’s or constable’s return, without proof being made before the court that the person served was, at the time, an agent or officer of the corporation, authorized by law to receive service, is voidable merely, and not void. But for the peculiar rule obtaining in Alabama, and no where else, of which I am aware, which requires such proof to be made.before the court, in aid of the officer’s return, such a status as a return of service of mesne process, voidable on the face of the record, is not conceivable. The purpose of service, and return thereof, is sole. It is to confer jurisdiction of the person of the party sued upon the court. When the return is made, it is the record upon which rests the evidence of the court’s jurisdiction of the person. It imports the same verity, and is as conclusive, as any other part of the record. To confer jurisdiction the return must, of course, show with reasonable certainty the facts, and all the facts, essential to such jurisdiction. If it fails in this, even in the slightest material particular, the court can not accept it as evidence of jurisdiction. It is a nullity. A judgment by default rendered upon it is void upon the face of the record. On the other hand, if it shows all the essential facts, jurisdiction is conferred, and the sole purpose accomplished. There is no middle ground. The return, on the face of the record, is, necessarily, complete and perfect, or an absolute nullity. Whether the suggestion of the Chief Justice that the omission of the record to show that the peculiar Alabama rule in respect of the proof required to be made in aid of the return, was complied with, renders the judgment voidable merely, I do not think it necessary to decide in this case ; for, I understand, the writ of certiorari is grantable, as well when the court proceeded irregularly to judgment, as when it was without j urisdiction. It is a question of much im*498portance, and I prefer to express no opinion upon it until it is expressly raised and argued. I desire, however, as the subject has been discussed in the opinions of my brothers, to make some observations, as merely suggestive, upon the general law of the service upon corporations and judgments thereon, and to refer to the origin and growth of the Alabama rule requiring the return to be aided by other proof of its verity. Under the general law prevailing everywhere else than in this State, (unless changed by statute), there is no distinction, in the verity accorded a sheriff’s return in suits against corporations and against individuals. In the former, if there be no statute prescribing the particular officers or agents upon whom the service shall be made, it must be made upon the head or principal officer of the corporation. — 1 Tidd’s Prac., marg. p. 121, and notes ; Angelí & Ames on Corporations, (2d Ed.), 508,note ; Morawetzon Corp., § 521. If regulated by statute, the service must be upon the officer or agent, so provided. The return must show clearly upon what officer or agent service was made and the character of the office or agency. The time, place and manner of service should be clearly stated. — 22 Am. &Eng. Encyc. of Law, 184, et seq., and notes. A return thus complete, imports absolute verity, and is just as unassailable as a perfect return in case of an individual. By it the.court acquires jurisdiction of the person, and its judgment is conclusive If the return is untrue ; if the person returned as served was not in fact the officer or agent of the corporation, as represented, the remedy of the corporation, if injured, is against the sheriff; and sometimes equity lends its aid to relieve. — 1 Tidd’s Pr. (Am. Notes,) p. 122; 22 Amer. & Eng. Encyc. of Law, 192, et seq. and notes. Extraneous evidence will not be received to aid the return. — See note, 1 Tidd’s Pr., 122, supra.
But we come to the Alabama rule. It began with the case of Planters & Merchants Bank v. Walker, Minor, 391. By statute, a bank was liable to summary judgment on motion for the amount of its bank notes, payment of which had been refused on presentation. The statute made service of notice of the motion on the president or cashier of the bank sufficient to make the bank a party defendant. The sheriff returned, in proper form, that he had served the notice on“¥m. 0. Hill, cashier of the *499bank.” The court, by Judge Gayle, said: “By the record, it is not shown that it appeared to the satisfaction of the court that Hill was such cashier. It seems to us that the official duties of the sheriff did not require him to certify in his return who was the cashier. His return proved only that service was made on a particular individual, not that such individual was cashier. He being only an agent of the bank, his identity must be ascertained, as other facts are, by proof. The sheriff might serve the notice on a stranger having no connection with the bank, and judgment might thus, on motion, be rendered against the corporation without an opportunity of malting defense.” No authorities are cited. Judge Crenshaw dissented. He said : “I concur with the majority of the court, in thinking that, as this is a summary and extraordinary remedy, the record should show that the plaintiff in the motion had complied with all which the statute requires to entitle him to the remedy. But I think that the plaintiff has done all this in the present case. I can not think it was contemplated by the statute that the plaintiff should prove that the person on whom the notice was served was the cashier.”
The error of the conclusion of the majority, it seems to me, obvious. It is not only opposed to the authorities to which I have referred, which accord verity to the return showing service upon the proper agent of the corporation, and which exclude extrinsic proof that such person was not the agent, but to reason also. When a suit is instituted j urisdiction of the person of the defendant must, in some way, be obtained. The law charges the sheriff or constable, as the case may be, with that duty. That officer is thus authorized, and it is his official duty, to investigate and ascertain who the defendant — who the party intended to be sued — is ; to identify him as the real defendant and serve the process upon him ; and when he performs that duty and makes return, in proper form, he thereby makes a record as unassailable as any record the judge can make. The evils of a false return, suggested by Judge Gayle, may as readily occur in a suit against an individual as a corporation. Suppose a suit against John Smith, for instance, and there are a dozen persons by that name in the county. .The sheriff, by mistake, serves the process on a John Smith other than the person really sued, and returns *500that he has served it upon the defendant, John Smith ; upon which judgment is rendered. The judgment is conclusive upon the real defendant. The sheriff is responsible to him for the mistake; just as he would be, as if having a writ of arrest against John Smith, he arrests the wrong person, though bearing that name. He is bound to know who the party to the process is. In case of a corporation, the agent provided by law to receive service is, for the purpose of service, the defendant itself.' The sheriff must and may identify him, jupt as he would an individual defendant, and there is no reason why the duty may not be well performed. But, again, suppose the rule laid down by Judge Gayle be sound. It results, logically, that a sheriff’s return can not bring a corporation into court. The defendant can not be regarded as before the court, because the return itself is inefficacious to show that the person served, as agent, was in fact agent. The court must regard that he was not an agent. The rule necessarily, proceeds upon that presumption. Then, is it not manifest, that the proceeding instituted by the court, by which evidence is taken to prove that lie was such agent, is purely ex parte*! Can such a proceeding, to which the corporation is not a party, and hence without opportunity to be heard, to cross-examine the witnesses or introduce rebutting evidence, be binding on the corporation? If not, then of what value is the proof? What does it legally add to the verity of the return ?
The rule was next declared in St. John v. Tombeckbee Bank, 3 Stew. 146, where Judge Crenshaw simply followed the former decision without further discussion.
It was next declared in Lyon v. Lorant, 3 Ala. 151, without discussion or the citation of authorities, but evidently following the former cases.
Then, in W. & C. R. R. Co. v. Cole, 6 Ala. 655; Oxford Iron Co. v. Spradley, 42 Ala. 24, and many subsequent cases down to the present day, it has been treated as the settled rule, upon the authority of these cases, without being discussed or questioned ; until it must now be regarded as a settled rule of practice in this State. But, the question raised by the Chief Justice, whether the omission from the record of the required proof, renders the judgment void or merely erroneous and reversibly, is an open question. Will it be regarded as an essen*501tial to jurisdiction, or will it be so tempered as to leave tlie sheriff’s return efficacious to confer jurisdiction, and the rule itself one merely of practice, intended as a safeguard against mistakes of the sheriff, hence, failure to observe it a mere irregularity?