Cudahy Packing Co. v. Chicago & Northwestern Railway Co.

CourtUnited States State Supreme Court of Missouri
Citation230 S.W. 82,287 Mo. 452
PartiesCUDAHY PACKING COMPANY v. CHICAGO & NORTHWESTERN RAILWAY COMPANY, Appellant
Decision Date09 April 1921

Appeal from Jackson Circuit Court. -- Hon. W. O. Thomas, Judge.

Affirmed.

George Kingsley for appellant.

(1) The court acquired no jurisdiction over the defendant, and had no authority to enter judgment against it, because no copy of plaintiff's petition was served with the writ of summons. R. S. 1909, sec. 1760; 32 Cyc. 449; Feurt v. Caster, 174 Mo. 289. (2) Defendant being a foreign corporation, as the return to the writ of summons shows, should have been served according to Section 1760, R. S. 1909. Service was not good even under Section 1766, because it does not appear that the president or other chief officer of the defendant was absent from the county. Horn v. Railroad, 64 Mo 561. (3) Defendant by taking an appeal to the circuit court did not waive the defects of jurisdiction. Meyer v. Ins Co., 184 Mo. 481; Bente v. Typewriter Co., 116 Mo.App. 77; State ex rel. Fairbanks v. Ayers, 116 Mo.App. 90.

New Miller, Camack & Winger, P. E. Reeder and John Taylor for respondent.

The alleged defects in the summons and return were cured by defendant's appeal from the judgment of the justice. Secs. 7568, 7579, R. S. 1909; Ser v. Bobst, 8 Mo. 560; Damhorst v. Railway Co., 32 Mo.App. 350; Gant v. Railway Co., 79 Mo. 502; Fitterling v. Railway Co., 79 Mo. 504; Boulware v. Railroad, 79 Mo. 494; Hull v. Beard, 80 Mo.App. 200; Musgrove v. Mott, 90 Mo. 107; Lesan Adv. Co. v. Castleman, 265 Mo. 345; Powell v. Railroad, 178 S.W. 216; Whiting v. Railroad, 101 Mo. 631; Idalia Realty & Dev. Co. v. Norman, 184 Mo.App. 146.

OPINION

JAMES T. BLAIR, J.

In this case the Kansas City Court of Appeals rendered a decision (Cudahy Packing Co. v. C. & N.W. Ry. Co., 207 S.W. 70) which it deemed contrary to a previous decision (Swezea v. Jenkins, 186 Mo.App. 428, 171 S.W. 618) of the Springfield Court of Appeals. This explains the presence of the case here. [Sec. 6, Amd. of 1884 to Art. VI. of the Constitution of Missouri.]

Plaintiff Packing Company sued in a justice's court to recover from defendant Railway $ 156.75 damages for losses it alleges it suffered by reason of defendant's failure to re-ice a car of meat. Summons issued and an attempt at service was made. A motion to quash the return was overruled by the justice. Defendant made no further appearance in the justice's court, and judgment went for plaintiff. In due time defendant filed its affidavit and bond for appeal. The appeal was duly granted by the justice and the case properly lodged in the circuit court. In that court defendant filed its motion to "quash, set aside and vacate" the writ of summons and the return thereon. This motion was overruled. Defendant made no further appearance, and judgment again went for plaintiff. From this judgment defendant appealed to the Kansas City Court of Appeals, which affirmed it and transferred the cause to this court for the reason stated.

Several questions are discussed in the briefs, but the Court of Appeals disposed of the case by a ruling that the taking of an appeal from a justice's court "waives the question of defective summons" in that court "and amounts to a general appearance in the circuit court." This ruling, if correct, disposes of the case. The question would not seem to require much space for its discussion were it not for the fact, pointed out by the Court of Appeals, that there is considerable conflict in this State in the decisions upon the subject. In view of this it is necessary to examine several previous decisions.

The effect of an appeal from a justice's court upon defects in or want of summons or service in that court depends upon the governing statute. That the Legislature constitutionally may enact that such an appeal, taken to a court where a trial de novo is to be had, shall constitute a general appearance in the cause, cannot be seriously questioned. Decisions subsequently referred to disclose that no constitutional obstacle is thought to intervene. The question in this case, therefore, concerns solely the meaning of the applicable statute as written.

In 1835 (Sec. 8, p. 370, R. S. 1835) it was enacted that upon the filing of the transcript "in the clerk's office, the court shall be possessed of the cause, and shall proceed to hear, try and determine the same anew, without regarding any error, defect or other imperfection in the proceedings of the justice." In the first case we have found in which this court referred to this section, it is clearly indicated that the court thought the taking of an appeal from the justice constituted an appearance having some efficacy to waive the insufficiency of the return of the summons in the justice's court. [Atwood v. Reyburn, 5 Mo. 533.] In Lutes and Dulany v. Perkins, 6 Mo. 57, there had been no service upon Lutes, one of the defendants, in the justice's court. Lutes and Dulany both appealed from the judgment of the justice. In the circuit court both moved to set aside the judgment of the justice for the reason that the justice had no jurisdiction of the cause of action and none of the persons of movents. The court said that the return on the justice's process showed no service on Lutes and that "the circuit court committed error in entering up judgment against Lutes." Section 8, p. 370, Revised Statutes 1835, was neither cited in the briefs nor mentioned in the opinion. In Ser v. Bobst, 8 Mo. 506, the service of the summons had been insufficient to give the justice jurisdiction of the person. The case was under the forcible entry and detainer act. The justice entered judgment by default. Defendant appealed. The controlling statute (Sec. 36, p. 49, Laws 1838-39; Act of January 28, 1839) was, in so far as concerns the question here, like Section 8, page 370, Revised Statutes 1835. The circuit court dismissed the appeal. This court held that the circuit court should, "without regarding any error, defect, informality, or imperfection, in the proceedings of the justice, have proceeded to hear, try and determine the same anew, as if it had originated in that court . . . The appellant, by bringing up the cause, had dispensed with the necessity of a regular summons before the justice." In Williams v. Bower, 26 Mo. 601, the summons issued by the justice had been made returnable in nine days instead of the minimum fifteen days prescribed by the statute. There was judgment by default and an appeal to the Law Commissioners Court (R. S. 1855, p. 1596, et seq.) where a motion to dismiss for the mentioned defect was overruled and the cause was then brought to this court. The question of the effect of the appeal upon defects of service was not mentioned; but the court did reverse the judgment and dismiss the cause because, it held, the summons was void. Sanders v. Rains, 10 Mo. 770, was cited. In that case no appeal had been taken from the justice's court, and the question of the effect of an appeal was neither presented by the record nor referred to by the court. In Hunt v. Cobb, 28 Mo. 198, the rule in Williams v. Bower, was applied. The question before us was not referred to by the court. Judge Scott dissented on another ground. In Blunt v. Railroad, 55 Mo. 157, defendant moved in the justice's court to set aside judgment by default, on the ground that "the process was not legally issued and served." The motion was overruled and defendant appealed to the circuit court. There it moved to dismiss the cause for the same reason but did not except to the adverse ruling of the circuit court. On error this court said that under the statute (like that of 1835) "the effect of an appeal to the circuit court, without anything further, amounts to full appearance to the action of the circuit court." This would seem to dispose of the matter, but the court added: "But the appellant is allowed by motion in the appellate court to demonstrate the purpose of his appeal, which was done in this case. This motion, however, was overruled." If the defect of service was waived by appeal, it would seem the permission to demonstrate such a "purpose of his appeal" would contain small comfort for the defendant. The court further said it could not consider the overruling of the motion because no exception had been saved. Unless the appeal waived the defect in the process it would seem the question could have been reached on the record. This decision has the appearance of deciding the question both ways. In Jordan v. Railway, 61 Mo. 52, defendant objected to the justice's process by motion to set aside judgment by default. The motion was overruled and defendant appealed to the circuit court. That court overruled a motion to dismiss the cause because of defects in the justice's process. On appeal this court reversed the judgment and remanded the cause with direction that the case be dismissed unless facts were shown which justified an amendment showing service. The question of the effect of the appeal as an appearance was not suggested or considered. This decision was rendered at the October Term, 1875.

Thereupon the Legislature came to the rescue. In 1879 (Sec. 3052, R. S. 1879) the old statute (Sec. 13, p. 724, G. S. 1865), which had remained the same since 1835 and under which the varying decisions referred to had been rendered, was amended to read as follows:

"Upon the return of the justice being filed in the clerk's office, the court shall be possessed of the cause, and shall proceed to hear, try and determine the same anew, without regarding any error, defect or other imperfection in the original summons or the service thereof, or on the trial, judgment, or other proceedings of the justice or constable in relation to the cause."

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