Jordan v. Chicago & A. Ry. Co.

Decision Date01 March 1904
Citation105 Mo. App. 446,79 S.W. 1155
CourtMissouri Court of Appeals
PartiesJORDAN v. CHICAGO & A. RY. CO.<SMALL><SUP>*</SUP></SMALL>

Action by Bridget Jordan, administratrix of Michael Jordan, deceased, against the Chicago & Alton Railway Company. From a judgment for plaintiff, defendant brings error. Reversed.

Franklin Houston, for plaintiff in error. P. H. Cullen, for defendant in error.

Statement.

REYBURN, J.

This proceeding was inaugurated December 7, 1900, returnable to the January term, 1901, for damages for malicious prosecution upon charges of petit larceny alleged to have been committed July 5 and 7, 1900. The suit was brought against the Chicago & Alton Railroad Company, and the summons was issued against and the return showed service upon the Railroad Company, which was alleged to be a corporation under the laws of the state of Illinois. At the return term the Railroad Company, defendant, answered by a plea in abatement, averring that it appeared for that purpose only, and that plaintiff ought not to have or maintain the action, for the reasons that at the time of the commencement thereof defendant was a corporation under the laws of the state of Illinois, and was not at the time of the alleged injuries, nor had it since been, nor was it then, operating a railroad or doing business in the state of Missouri, and the answer concluded with a general denial. Thereupon plaintiff moved to allow the amendment of the petition, summons, and return in the cause by correcting (as averred) a mistake in the name of the defendant, in this: that therein the defendant was named the "Chicago & Alton Railroad Company," and that the real name of the defendant was the "Chicago & Alton Railway Company," and that the latter was the corporation sued and intended to be sued, and the summons was actually served upon an agent of the Chicago & Alton Railway Company, which is an Illinois corporation, and that in calling the defendant a "railroad" company instead of a "railway" company plaintiff made a mistake; but that the Chicago & Alton Railway Company was then, and had been for a long space of time, known as the Chicago & Alton Railroad Company, and by such last-named title defendant had transacted its business and exercised its corporate franchises, and proclaimed to the plaintiff and the public that its real name was the "Chicago & Alton Railroad Company," and was better known and conducted more business under said last name than under its legal name, by all of which plaintiff was led into the error of calling it "railroad" instead of "railway" company.

This motion, without any evidence thereon, was sustained, plaintiff granted leave to file an amended petition and amend the original summons and return, and the sheriff, by leave of court, amended his return on the original summons; to which action and the rulings of the court in sustaining such motion, and substituting the name of the Chicago & Alton Railway Company for that of the Chicago & Alton Railroad Company, as defendant in the original writ of summons and return filed, and in permitting plaintiff to amend such petition, writ, and return, defendant duly saved its exceptions.

The clerk of the court, in turn, amended the original writ by substituting for the words "Chicago & Alton Railroad Company," as originally written, the words "Chicago & Alton Railway Company," over the exceptions of defendant. Thereupon plaintiff filed an amended petition, substituting the Chicago & Alton Railway Company as defendant, in lieu of the Railroad Company, but no summons was issued for the substituted defendant. Defendant then filed a motion to strike out its name as defendant in the amended petition, writ, and return, alleging its appearance for that purpose only, and assigning that the original petition stated a cause of action against the Chicago & Alton Railroad Company, a different corporation, also existing under the laws of the state of Illinois, and the original writ in the cause was issued against, directed to, and summoned the Chicago & Alton Railroad Company, and the original return on such original writ showed service upon the Chicago & Alton Railroad Company to appear and answer said original petition, and the Chicago & Alton Railroad Company appeared and answered the original petition, and the court had no power to allow the amendment of the original petition, writ, and return by substituting the name of the Chicago & Alton Railway Company as party defendant for that of the Chicago & Alton Railroad Company; for the Chicago & Alton Railway Company had not been served with process as required by law, nor had it appeared therein, the suit and summons being directed against another company, the recent lessor, and the substitution of the Chicago & Alton Railway Company for the original defendant Railroad Company by amendment was a substitution of one cause of action for another and of one defendant for another. The court refused to permit the introduction of the evidence tendered to sustain such motion, and overruled it, and the defendant Railway Company filed a motion to quash the sheriff's amended return, assigning that neither upon the face of the return, nor upon the face of the petition and writ served, as shown by the original petition, writ, and return thereto attached, had a petition or writ directed to the defendant been served by the sheriff as shown by the original return, but the original petition and writ so served by the sheriff were directed to and against the Chicago & Alton Railroad Company, and no petition...

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