Bedell v. Richardson Lubricating Co.

• Decision Date: 01 April 1919
• Docket Number: No. 13203.,13203.
• Citation: 201 Mo. App. 251,211 S.W. 104
• Parties: BEDELL v. RICHARDSON LUBRICATING CO.
• Court: Missouri Court of Appeals

211 S.W. 104

201 Mo. App. 251

BEDELL v. RICHARDSON LUBRICATING CO.

No. 13203.

Kansas City Court of Appeals. Missouri.

April Term, 1919.

Error to Circuit Court, Chariton County; Fred Lamb, Judge.

Suit by R. K. Bedell against the Richardson Lubricating Company. Default judgment for plaintiff, and from an order overruling a motion to quash an execution, the defendant brings error. Affirmed.

J. A. Collett, of Salisbury, for plaintiff in error.

O. F. Libby, of Laclede, U. A. House, of Sumner, and John D. Taylor, of Keytesville, for defendant in error.

BLAND, J.

Defendant in error at the February term, 1918, brought this suit for libel in the circuit court of Chariton county, Mo., against plaintiff in error and one E. D. Richardson. Summons was directed to the sheriff of Audrain county. The return of the sheriff was as follows:

"Executed the within writ in the county of Audrain and state of Missouri, on the 4th day of January, 1918, by delivering to E. L. Johnson certified copy of the within petition and summons as certified and furnished me by the clerk of the circuit court of Chariton County, Missouri, E. L. Johnson an agent of the Richardson Lubricating Co., a corporation and E. D. Richardson, the within named defendant. E. L. Johnson being then and there an agent of said company in charge of its office in said county, the president and other chief officers not found in said county."

At the February term, 1918, there was a verdict and judgment by default against plaintiff in error, Richardson Lubricating Company, in the sum of $3,000, suit having been dismissed as to the defendant, E. D. Richardson. Afterwards at the same term plaintiff in error filed a motion to quash the execution for the reason that no proper service had been had on it. This motion was overruled.

The first attack made upon the return is that it is claimed that it fails to comply with section 1766, R. S. 1909, which provides as follows:

"When any such summons shall be issued against any incorporated company, service on the president or other chief officer of such company, or, in his absence, by leaving a copy thereof at any business office of said company with the person having charge thereof, shall be deemed a sufficient service; and if the corporation have no business office in the county where suit is brought, or if no person be found in charge thereof, and the president or chief officer cannot be found in such county, a summons shall be issued, directed to the sheriff of any county in this state, or any other state, where the president or chief officer of such company may reside or be found, or where any office or place of business may be kept of such company, and the service thereof shall be the same as above."

It is the contention of plaintiff in error that—

"The return does not show that a certified copy of the summons and petition was left at any business office or office or any place of business of the company with the person having charge thereof."

The record shows that the Richardson Lubricating Company was a business corporation engaged in the selling and distribution of petroleum and its products. The return shows that the summons was served upon an agent of said company in said company's office, such agent having charge of such office. We are unable to see why this return is not sufficient.

In Blanton v. Jamison, 3 Mo. 52, the Supreme Court said:

"It is fair to infer everything against the return, which its departure from the statute will warrant, and which we are not precluded from doing by its terms."

In Stanley v. Sedalia Transit Co., 136 Mo. App. 388, loc. cit. 391, 117 S. W. 686, this court said:

"It is fair to infer everything against the return which its departure from the statute will warrant."

In Holtschneider v. Railroad, 107 Mo. App. 381, loc. cit. 385, 81 S. W. 490, this court said:

"No doubt it is true, as defendant contends, that the law requires that the return of a sheriff, or other officer, showing or attempting to show constructive service of the summons, is to be strictly construed. Everything may be inferred against the officer's return which its departure from the description of the statute will warrant"—citing Bank v. Suman, 79 Mo. 527.

In Taylor v. Helter, 198 Mo. App. 643, loc. cit. 647, 648, 201 S. W. 619, St. Louis Court of Appeals said:

"But it has frequently been held that `the return cannot be aided by presumptions or intendments that nothing can be presumed in favor of the return, or read into it by intendment; that the return must show on its face that every requisite of the statute has been complied with.' * * * It has been said that every, thing may be inferred against an officer's return which its departure from the statutory requirements will warrant."

However, in Mikel v. St. Louis, K. C. & Northern Rd., 54 Mo. 145, loc. cit. 146, the Supreme Court in reference to this statute said:

"The statute is remedial in its nature, and should not receive a restricted or artificial construction."

In Davis v. Jacksonville Southeastern Line, 126 Mo. 69, loc. cit. 76, 28 S. W. 965, 966, the same court said:

"The return should receive a reasonable and natural interpretation. It must be fairly construed, and effect be given to its plain intent and meaning."

In State ex rel. v. Sale, 232 Mo. 166, loc. cit. 174, 132 S. W. 1119, the court again reasserted the rule of construction laid down in Davis v. Jacksonville Southeastern Line, supra, by quoting approvingly the language that we...