State ex rel. Texas Portland Cement Co. v. Sale

• Citation: 132 S.W. 1119,232 Mo. 166
• Parties: THE STATE ex rel. TEXAS PORTLAND CEMENT COMPANY v. MOSES N. SALE, Judge
• Decision Date: 31 December 1910
• Court: United States State Supreme Court of Missouri

132 S.W. 1119

232 Mo. 166

THE STATE ex rel. TEXAS PORTLAND CEMENT COMPANY v. MOSES N. SALE, Judge

Supreme Court of Missouri

December 31, 1910

Peremptory writ awarded.

Edward D'Arcy and Percy Werner for relator.

(1) The sheriff's returns show a good service, having been made on the defendants' representative in charge of their offices. It is not necessary that service on a corporation be had on its general agent. Davis v. Southeastern Line, 126 Mo. 69; Newcomb v. Railroad, 182 Mo 705. (2) The person who is in charge of defendant's office at the time of service is the proper person to be served. Davis v. Southeastern Line, supra. (3) The object of the Legislature in providing for service on foreign corporations doing business in Missouri was "to render the service of summons as facile and effective as it already was on individuals and domestic corporations." McNichol v. Mercantile Agency, 74 Mo. 457; McAllister v. Ins. Co., 28 Mo. 214. (4) It is the duty of a foreign corporation doing business in this State to maintain a public office for the transaction of its business, "where legal service may be obtained upon it." R. S. 1899, sec. 1024; R. S. 1909, sec. 3037. (5) The fact that the defendant corporations have appeared in court to object to the service shows that, as a matter of fact, information of the service was conveyed to them by Hatfield. Abbeville Co. v. Western Co., 85 Amer. St (S. C.) 896. (6) Service on an employee of a corporation in possession of its property is good. Saunders v. Nursery, 6 Utah, 431. (7) Service of this kind "is founded in the necessity of the case." Considerations of convenience and necessity underlie all judicial construction of statutes. Fanny v. State, 6 Mo. 142; 4 Bacon's Abridgment, 652; Broom's Maxims (8 Ed.), * 185.

Nagel & Kirby for respondent.

(1) Mandamus will not lie to control a judicial act or compel a court to enter any particular judgment. It lies only to compel the performance of a ministerial duty. State ex rel. v. Garesche, 65 Mo. 489; State ex rel. v. Klein, 140 Mo. 502; State ex rel. v. Fort, 180 Mo. 97. (2) Mandamus will not lie where a court has not declined to proceed with a cause but has simply held the service of summons to be insufficient. State ex rel. v. Field, 107 Mo. 445; State ex rel. v. Broaddus, 207 Mo. 107. (3) Mandamus cannot be used to perform the office of an appeal, and where the remedy by appeal is adequate, the mandmus will not lie. State ex rel. v. Lubke, 85 Mo. 338; State ex rel. v. Megown, 89 Mo. 156; State ex rel. v. Smith, 105 Mo. 6; State ex rel. v. Rombauer, 125 Mo. 632; State ex rel. v. McKee, 150 Mo. 233. (4) In this case relator could have signified its intention to stand on the return as made and demanded a dismissal of the action, from which judgment it could have appealed and thus secured a review of the question of jurisdiction. Gilstrap v. Felts, 50 Mo. 431; Bank v. Armstrong, 92 Mo. 265. (5) Statutes authorizing substituted service must be strictly construed, and everything must be inferred against the return which its departure from the statute will warrant. Blanton v. Jamison, 3 Mo. 52; Bank v. Suman, 79 Mo. 528; Haley v. Railroad, 80 Mo. 112; Gamasche v. Smythe, 60 Mo.App. 161; Cloud v. Pierce City, 86 Mo. 357. (6) The statute (sec. 570, R. S. 1899) differentiates between the manner of service on foreign corporations having an office and those not having an office. In the first case, the service must be upon an officer or agent in charge of such office, while in the other case, the service may be upon any officer, agent or employee -- clearly indicating a distinction between agents and employees. (7) Defendants can be brought into court only by summons served in the proper manner. It is not sufficient that a copy of the summons reaches them in an unauthorized way. State ex rel. v. Myers, 126 Mo.App. 549; Newcomb v. Railroad, 182 Mo. 706.

GRAVES, J. All concur, except Burgess, C. J.

OPINION

In Banc.

Mandamus.

GRAVES J.

Relator seeks by mandamus to compel Hon. Moses N. Sale, one of the judges of the circuit court of the city of St. Louis, to proceed with a certain cause wherein the relator, Texas Portland Cement Company, a corporation organized and existing under the laws of West Virginia, is plaintiff, and the International Steam Pump Company, a corporation of New Jersey, and the Snow Steam Pump Works, a corporation of New York, are defendants. The action is one to recover $ 1,500,000 damages for breach of a certain contract in the petition fully described.

The history of the case both below and here is this: Relator filed its petition in the circuit court November 15, 1909, and had a summons issued to each of the defendants. These two instruments being placed in the hands of the sheriff of said city, he executed them in the following manner as shown by his return thereon:

"Executed this writ in the city of St. Louis, Missouri, on this 15th day of November, 1909, by delivering a copy of the writ and petition as furnished by the clerk to R. M. Hatfield, clerk of said defendant, International Steam Pump Company, he being at the time in said defendant's usual business office and in charge thereof. The president or other chief officers of said defendant could not be found in the city of St. Louis at the time of the service, said defendant, International Steam Pump Company, being a foreign corporation, having an office and doing business in the city of St. Louis and State of Missouri, at the time of service.

"Louis Nolte, Sheriff,

"By D. Kretschmer, Deputy.

"I further executed this writ in the city of St. Louis, Missouri, on this 15th day of November, 1909, by delivering a copy of the same as furnished by the clerk to R. M. Hatfield, clerk of said defendant, the Snow Steam Pump Works, he being at the time in said defendant's usual business office and in charge thereof. The president or other chief officers of said defendant could not be found in the city of St. Louis at the time of service, said defendant, the Snow Steam Pump Works, being a foreign corporation, having an office and doing business in the city of St. Louis and State of Missouri, at the time of service.

"Fee $ 2.00. Louis Nolte, Sheriff.

"By D. Kretschmer, Deputy."

On December 18, 1909, each defendant appeared specially and filed a motion to quash the service. The motions are the same in language, and one will suffice. That of the Steam Pump Company reads:

"The International Steam Pump Company, one of the defendants herein, appearing specially and for the sole and single purpose of presenting this motion, moves the court to quash the service of the summons on the International Steam Pump Company for the reason that it appears from the return of the sheriff on said summons that said defendant has an office in the city of St. Louis, Missouri, and that said summons was served upon a 'clerk' of said defendant and not upon an 'officer or agent' thereof as required by the provisions of section 570, Revised Statutes of Missouri 1899."

These motions were sustained by the circuit court May 26, 1910, and on May 27th relator filed a motion to compel defendants to plead, answer or demur to relator's petition. This motion the court overruled. Respondent did not refuse to permit the sheriff to amend his return. Nor did relator ask for alias process or take other steps than above indicated. June 28, 1910, an alternative writ of mandamus was issued by this court upon application of relator, to which Judge Sale has made full return, and from which returns we have gathered the facts herein stated. Relator filed a motion for judgment upon the pleadings, so that the case stands here upon the admissions made in the return. Respondent Sale seeks the judgment of this court upon the merits, and to that end there is presented the sole question of the sufficiency of these returns. Other questions are discussed in the briefs, but were waived in the oral argument at request of respondent, who deemed the question presented upon the returns as a very important one to the circuit court of the city of St. Louis, where many such suits are pending and others being continuously brought. This outlines therefore the sole issue in the case. The chief bone of contention is the sufficiency of these words in the return: "R. M. Hatfield, clerk of said defendant . . . he being at the time in said defendant's usual business office and in charge thereof."

Respondent contends that the service upon a "clerk" does not meet the demands of the statute; relator, contra.

This sufficiently states the case.

I. It is urged that if these defendants in the suit mentioned cannot be served in the manner indicated by the return of the sheriff, then they can obviate service of process entirely. This may be true, yet it will not make this service good, unless it is good under the statute. The statute has designated the manner of service and the service must comport with the reasonable intendment of the statute as expressed by its terms. If these corporations are doing business in Missouri by license of the State, as it appears from the record they are, there is a method of reaching them without doing violence to the statute pertaining to service of process.

A part of section 3037, Revised Statutes 1909, reads: "Every corporation for pecuniary profit formed in any other State territory or country, before it shall be authorized or permitted to transact business in this State, or to continue business therein if already established, shall have and maintain a public office or place in this State for the transaction of its business, where legal service may be obtained upon it, and where proper books shall be kept to enable such corporation to comply with the constitutional and statutory...