Cloud v. Inhabitants of Pierce City

• Decision Date: 30 April 1885
• Parties: CLOUD v. THE INHABITANTS OF THE TOWN OF PIERCE CITY, Appellant.
• Court: Missouri Supreme Court

86 Mo. 357

CLOUD

v.THE INHABITANTS OF THE TOWN OF PIERCE CITY, Appellant.

Supreme Court of Missouri.

April Term, 1885.

[COPYRIGHT MATERIAL OMITTED]

Appeal from Lawrence Circuit Court.--HON. M. G. MCGREGOR, Judge.

REVERSED.

Henry Brumback for appellant.

(1) The court had no jurisdiction of the person of the defendant. The summons was not served upon the chief officer, mayor, or “chairman of the board of trustees,” as he was termed by chapter 41, page 240, General Statutes, 1865. “Process must be served on the mayor or other head officer.” Tidd's Prac. 121; McQueen v. Mfg. Co., 16 Johns. 6. In this case against a town there must have been an actual personal service, as laid down by Tidd, and provided by the Laws, 1875, page 105, in order to give jurisdiction of defendant. Constructive service can give jurisdiction only by virtue of express legislation and then “the essentials of the statute ought to be complied with.” Hewitt v. Weatherby, 57 Mo. 276; Stewart v. Stringer, 41 Mo. 400; Fisher v. Frederick, 33 Mo. 612; Smith's Adm'r v. Rollins, 25 Mo. 408; Schelt v. Leland, 45 Mo. 293. To sustain default against a corporation it must appear that service of process was had upon some person occupying such relation to the corporation that they could legally serve upon such person. Oxford Iron Company v. Spradley, 42 Ala. 24; Ins. Co. v. McCullough, 42 Ala. 657. The court having no jurisdiction, the judgment is not merely irregular, but is absolutely void. (2) The recital in the entry of judgment, that defendant was duly served with process, may be contradicted by other portions of the record, and the whole record may be considered together. The writ and endorsements thereon, down to the judgment itself, inclusive, is a part of the record and is open to examination. Vandenbush v. Lane, 4 Ran. 413; Wainright v. Harper, 3 Leigh, 270; Harrison v. Hardeman, 14 How. 338. The sheriff's return is a part of the record itself. Rumfelt v. O'Brien, 57 Mo. 572. The presumption in favor of the jurisdiction of superior courts necessarily ceases when the proceedings themselves negative the existence of jurisdiction. When, therefore, the record shows expressly or by necessary implication that the court has proceeded without notice to the parties, the judgment will be void, and may be disregarded as such in any collateral proceeding in which it is called in question. McKee v. McKee, 2 Harris, 231; Moreau v. Killegrew, 2 Yerger, 383; Babbitt v. Doe, 4 Ind. 355; Sanford v. Sanford, 28 Conn. 6; Hiss v. Cole, 3 N. J. 116; Tunis v. Witheron, 10 Iowa, 305; Smith v. Rice, 11 Mass. 507; Eaton v. Badger, 33 N. H. 226; Denning v. Corwin et al., 11 Wendell, 648; Schneider v. McFarland, 2 Comstock, 450. The principle remains untouched, that whenever the want of jurisdiction “appears the judgments of any and all courts will be void.” Bloom v. Burdick, 1 Hill, 141. (3) The appearance of defendant after judgment did not validate the judgment. Huff v. Shepard, 58 Mo. 246; Smith's Adm'r v. Robbins, 25 Mo. 408; Lincoln v. Hilbus, 36 Mo. 149; Schell v. Leland, 45 Mo. 293. Mandamus cannot issue until the claim is in judgment. State ex rel. Rogers v. Hug, 44 Mo. 116; State ex rel. White v. Clay Co., 46 Mo. 231. (4) Even if the judgment were not void and did not need to have been first revived or sued on, still the court erred, for the reason that no alternative writ had been issued, but a peremptory writ in the first instance. Even State ex rel. Cassidy v. Slavens et al., 75 Mo. 508, which holds that a petition is not necessary, recognizes the fact that plaintiff must first call for an alternative writ. An alternative writ must first issue. Dillon on Corp., sec. 694; 6 Mo. 563; Supervisors v. United States, 4 Wallace, 436; Riggs v. Johnson County, 6 Wallace, 185; Moses on Mandamus, 209. Motion to set aside the writ is the proper practice. People v. Everett, 1 Caines, 8.

N. Gibbs for respondent.

The manner of the service of process on incorporated towns at the time service was had in this case was provided for by General Statutes, 1865, page 330, sections 23, 24, 25, 26, and service in this case was in the exact manner prescribed in said sections, and was valid. (2) But even if it should be held that the manner of service was defective, yet it would not be a total absence of service, but an attempted and irregular service of process. In case of an attempted service of process the presumption exists that the court considered and determined the question of its sufficiency or insufficiency, and its finding, though erroneous, cannot be void. Freeman on Judgments (2 Ed.) sec. 126, and cases cited. (3) In the original judgment the court found that defendant had been duly served with process and “findings of service by the court are as conclusive on the parties, in all collateral proceedings, as any adjudication of the court can be.” Freeman on Judgments (2 Ed.) secs. 130, 131, and citations; Dunham v. Wilfong, 69 Mo. 355; Fulkerson v. Davenport, 70 Mo. 541; Reed v. Whitton, 78 Ind. 579; McCauley v. Fulton, 44 Cal. 355; Quivey v. Baker, 37 Cal. 465; Coit v. Haven, 30 Conn. 199; Lessee v. Whiteman, 2 Ohio St. 270; Richards v. Skiff, 8 Ohio St. 580; Cary v. King, 49 Iowa, 365; Drig's Adm'r v. Abbott, 27 Vt. 581; Abbott v. Coburn, 28 Vt. 663; Crepps v. Durden et al., 1 Smith's Leading Cases, part 2 (6 Am. Ed.) side page 826. (4) On the second of March, 1880 the City of Pierce came into court by its attorney, as the successor of the town of Pierce City, made itself a party, and from that day the court's jurisdiction over defendant and of the merits of the defence must be considered as adjudicated and conclusively determined. (5) Peremptory mandamus is the appropriate remedy to enforce the payment of a judgment against a municipal corporation, and is expressly provided for in certain cases by our statutes. R. S. 1879, secs. 2415, 2416, 2417. The writ of mandamus was in exact compliance with the statutes, was in proper form and properly served, and should be enforced. Frank v. San Francisco, 21 Cal. 697; Olney v. Harvey, 50 Ill. 453; Coy v. Lyons City, 17 Iowa, 1. (6) It is no defence that the warrant sued on “was issued by a fraudulent board of trustees.”“The acts of officers de facto are as valid and effectual, where they concern the public or the rights of third persons, as though they were officers de jure.” Woodside v. Wagg, 71 Me. 207; Hussey v. Smith, 99 U. S. 20; Sheehan's Case, 122 Mass. 445; Commonwealth v. Hawkes, 123 Mass. 524; Sharp v. Thompson, 100 Ill. 447; State v. Bates, 36 Vt. 396; Snyder v. Schrau, 59 How. Pr. (N. Y.) 404.

SHERWOOD, J.

I. The first point for consideration is, whether in contemplation of law any valid process was had on the inhabitants of the town of Pierce City, authorizing a judgment to be rendered against that corporation on the lost warrant. The defendant was incorporated under the provisions of the general law (General Statutes, 1865, chapter 41, page 239), and the chairman of its board of trustees was its chief officer. Ib., page 243, section 18. The service of the summons which issued to bring the defendant before the court was had on July 8, 1875, and the return on the summons is in this form:

“Executed the within writ in the county of Lawrence and state of Missouri, on the eighth day of July, 1875, by leaving a true copy of this writ with a certified copy of plaintiff's petition attached thereto, at the business office of defendant, in the town of Pierce City, in Lawrence county, Missouri, with Gabe C. Jones, the person having charge thereof, the said Gabe C. Jones also being clerk of the board of trustees of said town of Pierce City, and having charge of the records thereof, the president of said corporation and all other chief officers thereof, being absent and not found by me in said county.

J. B. DAVIS,

Sheriff Lawrence County.”

At common law, process was served on a corporation through its mayor or other head officer (1 Tidd, 121), as being the “most visible part of the corporation.” The judgment rendered in this case was by default. In order to support such a judgment, it must appear of record that the person who, the return of the officer shows, was served with process, has such a relation to the corporation, that service on such person was tantamount to service on the corporation. Oxford Iron Co. v. Spradley, 42 Ala. 24; Talladega Ins. Co. v. McCullough, Ib. 667. Nothing of this kind appears in this record, going to show the service of process valid; and clearly it possesses no validity, unless shown to be warranted by statute. Under the provisions of the statutes, process is properly served on the clerk of a county court where suit is brought against a county. R. S. 1879, sec. 3489. And this has long been the law in this state. G. S. 1865, p. 225, sec. 6; R. S. 1855, p. 503, sec. 8; Weil v. Greene Co., 69 Mo. 281. But I find no similar statutory provision regulating service of process on cities or towns. Chapter 62, General Statutes, 1865, to which counsel refer, as supporting the position that the service had in the present instance is valid, is a chapter entitled “Private Corporations,” and the whole framework and structure of the chapter denote that the title chosen was not inaptly chosen. Thus section twenty-four, of chapter sixty-two, of the General Statutes of 1865, on which plaintiff relies, and upon which his return of service is based, in terms relates to “any banking or other incorporated company,” and makes provision for service on the “president or other chief officer of such company,” and makes further provision, that “if the corporation have no business office in the county where suit is brought,” etc., that then a “summons shall be issued, directed to the sheriff of any county in this state, where the president or chief officer of such company may reside or be found, or where any office or place of business of such company may be kept, and the service thereof shall be the same as above.”

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