Davis v. Jacksonville Southeastern Line
| Decision Date | 22 December 1895 |
| Parties | Davis et al. v. Jacksonville Southeastern Line, Plaintiff in Error |
| Court | Missouri Supreme Court |
Error to St. Louis City Circuit Court. -- Hon. John A. Harrison Judge.
The petition in the cause is as follows:
Affirmed.
""Pollard & Werner for plaintiff in error.
(1) The sheriff's return on the summons shows that the service was defective. It appearing from the petition that defendant was a foreign corporation, the manner of service is regulated by the provision of section 2017, Revised Statutes of 1889. ""Blanton v. Duncan, 3 Mo. 38. The sufficiency of the service must be determined by the return itself. ""Cloud v. Inhabitants, 86 Mo. 357; ""Blodgett v. Schaeffer, 94 Mo. 652. (2) The petition fails to state facts constituting a cause of action, in the following particulars: It does not allege that the plaintiffs had any property, general or special, in the goods, or that they made any contract for their shipment. The suit against a carrier must be brought by the owner, either general or special, of the goods, or by me one who made the contract of shipment, and a recovery by the wrong party is no protection to the carrier. Hutchinson on Carriers, sec. 724; Angell on Carriers [4 Ed.], sec. 491. (3) The petition fails to show any breach, either of contract or duty, on the part of the defendant, either as carrier or forwarder. Hutchinson on Carriers, sec. 154; ""Cramer v. Express Co., 56 Mo. 524; ""Holtzclaw v. Duff, 27 Mo. 393. (4) In the absence of a contract the liability of a common carrier does not extend beyond the terminus of its own route. ""Coates v. Express Co., 45 Mo. 238; ""Railroad v. Pratt, 22 Wall. 123. (5) The petition, the summons with the return thereon, and the judgment, are parts of the record proper, and this court will take notice of, and reverse for errors therein, whether excepted to in the lower court or not, and where the objection is first made in this court. ""Bateson v. Clark, 37 Mo. 31; ""McIntire v. McIntire, 80 Mo. 470; ""State v. Pemiscot Co., 104 Mo. 26; ""Smith v. Burrus, 106 Mo. 97; ""Childs v. Railroad, 117 Mo. 414. (6) The court can not supply by mere intendment an averment which plaintiff has failed to make in his petition. ""Cook v. Putnam, 70 Mo. 671.
""Campbell & Ryan for defendants in error.
(1) The judgment shows, that the defendant had an office and was doing business in St. Louis, and that Poland was a freight solicitor and agent of defendant; the judgment is not inconsistent with the return, but the court in and by the judgment found, as a fact, that Poland was the agent of defendant at the time of the service of the writ upon him. Thus the record, taken as a whole, shows that the service was upon an agent of the defendant, and fully complies with section 2017, Revised Statutes, 1889. (2) The service, independently of the judgment, was good, for Poland as freight solicitor, was an agent of the defendant. ""Hageman v. Insurance Co., 97 Pa. St. 534; ""Block v. Railroad, 21 F. 529. The cases cited from 86 and 94 Mo., upon this point, by plaintiff in error, do not bear out its position that the return was fatally defective, for the court, in 86 Mo. 368, says that there are cases where an insufficient return would be cured by a special recital made of record. (3) While we insist that the return was good, yet the statute of jeofails would cure this defect, if any such existed. See ""Koehler v. Bernicker, 63 Mo. 368; R. S., sec. 2113. (4) The second assignment is that the petition does not state a cause of action. We do not think there is any just ground for this criticism. The principle of law sought to be invoked by plaintiff in error, is, that the petition shows that the plaintiffs had no standing in court and yet obtained a judgment against defendant. ""Miller v. Davis, 50 Mo. 572. (5) Where the record discloses a judgment in favor of a party not entitled to it, it will be reversed. ""Harrington v. Evans, 49 Mo. 377. (6) A judgment by default will not be reversed by reason of the omission of any allegations or averments, without proving which the triers of the fact ought not to have given a verdict. ""Robinson v. Construction Co., 53 Mo. 435; R. S. 1889, sec. 2113. (7) The objection to the petition must go to the entire sufficiency of the petition to state a cause of action, it can not avail where it states a cause of action which is indefinite or imperfect in some of its averments. ""McDermott v. Claas, 104 Mo. 14. (8) Such objection for imperfectly stating a cause of action must be taken by demurrer or motion. See ""Lynch v. Railroad, 111 Mo. 604; ""Bank v. Leyser, 116 Mo. 61; R. S. 1889, sec. 2113, clauses 8 and 9; Bliss on Code Pleading, sec. 438. It is the law of this state that if the court can glean a cause of action from the petition, it is good even against a general demurrer, and more so in this case after judgment. But the petition in this case does allege a cause of action. It alleges the partnership of plaintiffs, the corporate existence and business of the defendant as common carrier; that plaintiffs, in May, 1892, caused to be delivered to defendant forty thousand bags in good condition, to be carried by defendant over its road to East St. Louis, and thence to be forwarded by defendant to plaintiffs at St. Louis, Missouri; that the defendant received the bags for said carriage and delivery, and a breach of said contract, and a demand for the damages. Defendant received the goods as a common carrier in good order for carriage and delivery at St. Louis in good order, and it failed to keep its contract. ""Levering v. Transportation Co., 42 Mo. 88; ""Clark v. Railroad, 64 Mo. 440.
The plaintiffs began the present action, January 19, 1893, in the circuit court, city of St. Louis, upon a petition of which a copy will accompany this opinion.
The defendant made default, and took no steps in the action until after the final judgment. The February term, 1893, of the circuit court began on the sixth of that month. On the sixteenth of February, default for want of answer was entered. March 30, 1893, the cause was duly called for trial. Upon submission of plaintiffs' proof the court found for them, assessed their damages at $ 6010.80, "and six per cent. interest from January 19, 1893, the date of the institution of the suit;" and gave judgment for the total, $ 6080.80.
No motion for new trial or in arrest was filed.
The writ of error now before us was sued out later by defendant from the supreme court to review the record proper.
Two main errors in it are assigned; the first, that the return of service on the summons is insufficient to confer jurisdiction over the defendant in the action; the second, that the petition does not state facts sufficient, etc.
The return in question we shall copy in juxtaposition to the words of the statute by which it is governed.
THE RETURN.
THE STATUTE.
"Executed this writ in the City of
day of January, 1893, by delivering a
as otherwise provided by law. * * *
copy of the writ and petition as
Fourth, where de fendant is a
furnished by the clerk to A. A.
corporation or joint stock company,
Poland, freight solicitor of the
organized under the laws of any other
Jacksonville South-eastern Line, the
state or country, and having an office
within named defendant, who was in
or doing business in this state, by
its business office and had charge
delivering a copy of the writ and
thereof at the time of said service;
petition to any officer or agent of
the president or any higher chief
such corporation or company in charge
officer could not be found in the
of any office or place of business, or
city of St. Louis, Missouri, at the
if it have no office or place of
time of said service. Fee, $ 1.00.
service may be obtained," etc.
1. The question whether the court had jurisdiction to render the judgment it assumed to give, is one which may be raised for the first time upon writ of error. If the trial court was without the lawful power to act upon the defendant's rights, because ...
To continue reading
Request your trial