Page:Federal Reporter, 1st Series, Volume 1.djvu/574

 5 (36 FEDKBAIi KEPOaTEB. �not give a judgment by default against a corporation without a judicial finding, recited on the. record, that the service has been of a character to bring the corporation into court. Ox- ford Co. V. Spradley, 42 Ala. 24; Talladega Co. v. McCid- lough, Id. 667. But we have no such reasonable require- ments in Tennessee. The sheriff may simply return the process "exeeuted," and the presumption is that it is regular and on the proper officer. Any party aggrieved has his remedy by action for a false return against the sheriff, or by bill in equity to set aside the judgment. Wartrace v. Turnpike Co. 2 Cold. 515 ; Ridgeway v. Bank, 11 Humph. 522; Bell v. Williams, 1 Head. 230 ; Baxter v. Irvin, Thomp. Cases, 175 ; Oardner v. Barger, 4 Heisk. 669, 671. But even in Tennes- see one is not put to an action for a false return or a bill in equity to avoid a wrongful judgment. In Graham v. Roherts, 1 Head. 55, a writ against Garret Graham was served on Jared Graham, and the bill in equity of the latter to avoid the judgment wae dismissed, because he did not appear to contest the judgment by default in the first instance. �In Bank v. Skillem, 2 Sneed, 698, a judgment by default was set aside in the affidavit, and in Jones v. Cloud, 4 Cold. 236-239, on the motion of one not a party to the record, and in both cases it was held not to be error. No Tennessee case has been found which shows how the alleged extinction of a corporation may be contested in a suit against it in its corporate name; and, until modified by the sta tûtes above cited, the law was settled that upon the civil death of a cor- poration it could no longer sue or be sued, and could have neither officers nor stockholders ; and the same would doubt- less be the rule under these statutes after the five years of qualifled post mortem existence have elapsed. White v. Camp- bell, 5 Humph. 37; Hopkins v. Wkitesides, 1 Head. 33; In- graham v. Terry, 11 Humph. 571 ; Blake v. Hliikle, 10 Yerg. 217; Nashville Bank v. Petway, 3 Humph. 522. It is said in R. Co. V. Evans, 6 Heisk. 607, that the question of extinction must be raised "by a plea in abatement, motion or other procefeding," but there is nothing to indicate by whom these may be taken. In this case, and uniformly, i+ 's held * !ia,t a. ��� �