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WESTERN TAR PRODUCTS CORPORATION v. ALTON SHEET METAL & ROOFING WORKS

NOVEMBER 12, 1987

WESTERN TAR PRODUCTS CORPORATION
v.
ALTON SHEET METAL & ROOFING WORKS, INC. AND EMPLOYERS MUTUAL CASUALTY COMPANY



BEFORE HAWKINS, P.J., ANDERSON AND GRIFFIN, JJ.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

Western Tar Products Corporation (Western Tar), an Indiana corporation, has appealed from a default judgment rendered against it in the circuit court of Monroe County in favor of Alton Sheet Metal & Roofing Works, Inc. (Alton) and Employers Mutual Casualty Company (Employers Mutual), and an order of the circuit court overruling Western Tar's motion to vacate the judgment.

We find the process purportedly served in this case fatally defective and reverse.

 FACTS

 We will only recite the facts necessary to the conclusion we have reached in this case.

 On April 15, 1982 the Board of Education of Monroe County (the Board) sued Alton and its performance bondsman Employers Mutual in the Monroe County Circuit Court for a defective roof on a high school building in Hamilton. Service of process was had upon these defendants, who alleged as an affirmative defense that the flaw in the roof was caused by defective materials sold Alton by the Celotex Corporation (Celotex), a Delaware corporation, and manufactured by Western Tar.

 On the same date the answer was filed, April 29, 1982, the defendants also filed a third-party complaint against Celotex and Western Tar, alleging the defendants were

 entitled to recover as against Celotex and Western Tar any amount the plaintiffs recovered against these defendants.

 C. T. Corporation Systems (C-T) of 118 North Congress Street in Jackson was at that time the duly constituted agent for process for both third-party defendants, Celotex and Western Tar.

 The records of the circuit clerk show that process for mail was prepared for both Celotex and Western Tar, as shown by a copy of the summons to each in the court file. Summons was mailed on April 29. While the circuit clerk had no independent recollection of preparing and mailing two summons, her postage record showed the envelope to C-T containing the summons weighed seven ounces as opposed to a usual summons by mail weighing only three ounces. Furthermore, the postal charge was $3.67 as opposed to the usual charge of $2.99.

 There was no record of the third-party plaintiffs requesting that service be made by mail on the third-party defendants.

 Both summons mailed by the clerk to C-T were placed in and mailed in one envelope, and only one return receipt was sent. A copy of the return receipt is attached as an appendix to this opinion.

 The law firm Thompson, Alexander and Crews in Jackson handled all process for C-T Corporation Systems.

 On May 3, 1982, Cathy Still, an employee of that law firm, received the envelope from the circuit clerk and signed the return receipt. She had no ...


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