Cunningham v. Franke
| Decision Date | 21 June 1929 |
| Docket Number | No. 20639.,20639. |
| Parties | CUNNINGHAM v. FRANKE et al. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.
Action by Nat Cunningham against Arthur Franke, the Hauck Bakery Company, and another. Judgment for plaintiff, and defendant corporation appeals. Reversed and remanded.
Fred H. Blades and Harry E. Sprague, both of St. Louis, for appellant.
Everett J. Hullverson, Mark D. Eagleton and Hensley, Allen & Marsalek, all of St. Louis, for respondent.
Plaintiff sued Arthur and Louis Franke and the Hauck Bakery Company jointly, for damages for personal injuries sustained by him. There was a verdict and judgment against all the defendants, and the Hauck Bakery Company has appealed.
The action was brought to the December term, 1926, of the circuit court of the city of St. Louis, and summons was issued to all the defendants, returnable to said term. The summons to the Hauck Bakery Company was duly served and returned, but the summons on the defendants Franke, directed to the sheriff of St. Louis county, was not served until January 29, 1927, and the return of such service was not filed until April 11 following; the February term of the circuit court having intervened. Meantime an alias summons was issued to the defendants Franke, returnable to the April term. This was directed to the sheriff of the city of St. Louis. Return on this alias showed that neither of the defendants Franke had been found. On June 6, 1927, a default was granted as to defendants Franke, and on June 30 following, during the same term, an amended petition was filed, on which the cause was later tried.
It is unnecessary to set out the facts at great length, in view of the questions raised here on appeal. It may be well to state, however, that plaintiff received his injuries when the Hauck Bakery truck was struck by a truck belonging to the Frankes, and the bakery truck run upon or was knocked upon the sidewalk, and injured plaintiff.
When the case was called for trial, plaintiff's counsel proceeded to examine the jury with respect to their connection with the insurance company which carried insurance on appellant's truck. He also proceeded to examine the jury with reference to their connection with two insurance companies, which it is alleged carried insurance on the defendants Frankes' truck. There was some colloquy between plaintiff's counsel and the court before the trial proceeded. The court indicated that plaintiff would either have to dismiss as to the Frankes, who made no appearance at the trial, either in person or by counsel, or continue the case to the next term on account of defective service as to them. Plaintiff's counsel insisted that he was satisfied with the service and the trial proceeded and, as above stated, resulted in a verdict and judgment against all the defendants.
The question raised on appeal here is that there was no valid service on the defendants Franke, and therefore there were but two courses open to plaintiff, that he should have either dismissed the case as to the Frankes and proceeded against the appellant alone, or continued the case and had the Frankes brought in at a subsequent term of court, and, not having done so, the judgment is void, because the judgment as rendered did not finally dispose of all the parties to the action.
We are of the opinion that ap...
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