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PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF MISSISSIPPI v. JOHNNIE DILLON AND ASA ATWELL WILEY

AUGUST 03, 1988

PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF MISSISSIPPI
v.
JOHNNIE DILLON AND ASA ATWELL WILEY



EN BANC

ROBERTSON, JUSTICE, FOR THE COURT:

ON PETITION FOR REHEARING

I.

 This case presents a claim of insufficiency of service of process. The question turns on whether, for purposes of Rule 4(d), Miss.R.Civ.P., the Public Employees' Retirement System of Mississippi ("the System") more nearly resembles a "domestic corporation" or a "department" or "institution" of the State of Mississippi. The Court below held it was the former and denied the motion to dismiss. We affirm.

 II.

 Plaintiffs, Johnnie Dillon and Asa Atwell Wiley, are both employees of the Franklin County Sheriff's Department. Both Wiley and Dillon are over the age of seventy and the System, pursuant to Miss. Code Ann. 25-11-111(f) (1972) sought to require their mandatory retirement.

 Dillon and Wiley commenced this action on February 14, 1986, by filing their complaint in the Chancery Court of Franklin County, Mississippi. Named as the lone Defendant was the Public Employees' Retirement System of Mississippi. In their complaint, Dillon and Wiley sought declaratory and injunctive relief so as to relieve them from the demand of the System that they be retired "forthwith" .

 Process was issued for the System and was served by mail upon Fred M. Walker as agent for the System. Walker holds the office of Executive Secretary of the System. On March 13, 1986, the System appeared specially, acting under Rule 12 (b), Miss.R.Civ.P., *fn1 and moved to dismiss on various grounds, including the charge that process was required to be served upon the Attorney General of Mississippi and that this had not been done. The motion to dismiss, it ought be noted, was filed by the self same Attorney General of the State of Mississippi.

 On November 13, 1986, the Chancery Court entered its final judgment granting Dillon and Wiley substantive relief. For present purposes, we are concerned with that portion of the judgment which held

 That the Public Employees' Retirement System of Mississippi is a distinct and separate corporation created by statute for the purpose of providing

 retirement benefits to participating covered employees. Service of process may be had upon it by mail or in the form and manner as for any other corporation under Rule 4(d)(4) of the Mississippi Rules of Civil Procedure. That it is not the State of Mississippi nor one of its departments, officers or institutions requiring the service of process upon the Attorney General of the State of Mississippi under Rule 4(d)(5) nor is it a governmental entity mentioned in any other rule requiring personal service of process.

 The System now appeals.

 III.

 A defendant may be subjected to the in personam jurisdiction of a court only by service of process conforming to some valid rule prescribing the method and procedure for such service. The premise suggests resort to Rule 4, Miss.R.Civ.P. There we find many ...


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