Color Process Co. v. Northwest Screenprint Co., 52532
| Decision Date | 10 July 1967 |
| Docket Number | No. 1,No. 52532,52532,1 |
| Citation | 417 S.W.2d 934 |
| Parties | The COLOR PROCESS COMPANY, Appellant, v. NORTHWEST SCREENPRINT COMPANY, Respondent |
| Court | Missouri Supreme Court |
Gerritzen & Gerritzen, by Ray A. Gerritzen, St. Louis, for appellant.
Henry H. Stern, Jr., Baron, Stern & Liberman, St. Louis, for respondent.
HENRY J. WESTHUES, Special Commissioner.
Plaintiff, The Color Process Company, a Missouri corporation, filed this suit in the Circuit Court of the City of St. Louis, Missouri, against the Northwest Screenprint Company, an Illinois corporation. The suit was based on a breach of contract. In a first count plaintiff prayed for a judgment in the sum of $12,204.63 and in a second count for a judgment in the sum of $10,000 as punitive damages.
The defendant filed a motion which was captioned 'Motion to Dismiss.' In the motion, it was stated that the defendant 'appearing specially and for the purpose of this motion only, and specially denies that this court has jurisdiction as to it in this action, and moves to quash the summons and return of service as to said defendant on the following ground: * * *.' The ground stated was, in substance, that the summons was directed to the sheriff of Cook County, Illinois. It was served on Hyman J. Krauss in Chicago, Illinois, alleged to be the registered agent for the defendant corporation.
The trial court sustained the motion and plaintiff appealed.
In the brief plaintiff contends that the service by the sheriff of Cook County, Illinois, is good. The defendant contends otherwise. We need not determine that question for the reason that there is no final judgment in this case and therefore the appeal should be dismissed. Rowe v. Hizar, Mo., 163 S.W.2d 566; State ex rel. Anonymous v. Murphy, Mo.App., 354 S.W.2d 42, l.c. 43(1).
The parties have briefed a point pertaining to the so-called 'Motion to Dismiss' and the order of the court captioned 'Judgment of Dismissal.' Plaintiff argues that the trial court did not have authority to dismiss plaintiff's petition. The defendant argues that the trial court corrected the order by a 'nunc pro tunc' order showing that the court by its order merely quashed the service and did not dismiss the petition.
We rule that while the motion was captioned 'Motion to Dismiss,' it was in reality a motion to quash the service. The same is true of the order of the court. It was captioned 'Judgment of Dismissal' but the order did no more than quash the service.
Note the prayer of the motion:
'WHEREFORE, by reason of the premises, the defendant, NORTHWEST...
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State ex rel. Caine v. Richardson
...service improper was an order to quash that service. We will treat the order as one quashing service. Color Process Company v. Northwest Screenprint Company, 417 S.W.2d 934 (Mo.1967); Continent Foods Corp. v. National-Northwood, Inc., 470 S.W.2d 315 (Mo.App.1971). Such an order is properly ......
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Continent Foods Corp. v. National-Northwood, Inc.
...transformed into a judgment on the merits of the plaintiff's petition simply by so labeling it to be one. Color Process Co. v. Northwest Screenprint Co., Mo., 417 S.W.2d 934, 936. Civil Rule 67.03 and § 510.150, in part, provide that 'any involuntary dismissal other than one for lack of jur......
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Fish v. Fish
...substance, not caption, of a motion is dispositive in determining the character of the motion.”); Color Process Co. v. Northwest Screenprint Co. , 417 S.W.2d 934, 935 (Mo. 1967) (treating a court's order as quashing service because, although being captioned “Judgment of Dismissal,” the subs......
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Starnes v. Aetna Cas. & Sur. Co., 9482
...will not consider a judgment as having fully determined all the issues if it, in fact, has not done so. Color Process Co. v. Northwest Screenprint Co., 417 S.W.2d 934, 935--936 (Mo.1967); Continent Foods Corp. v. National-Northwood, Inc., 470 S.W.2d 315, 317(2) (Mo.App.1971). Likewise, if a......