Darby v. Weber Implement Company, a Corp.
| Decision Date | 18 January 1919 |
| Parties | S. E. DARBY, Respondent, v. WEBER IMPLEMENT COMPANY, a Corporation, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Stoddard Circuit Court.--Hon. W. S. C. Walker, Judge.
AFFIRMED.
Judgment affirmed.
Clarence T. Case and Edward L. Drum for appellant.
J. L Fort and J. M. Cook for respondent.
The plaintiff brought suit against the Weber Implement Company, a corporation, the appellant, and J. A. Hickman, an individual residing in Stoddard County, Missouri. The suit was dismissed as to Hickman prior to judgment, and proceeded against the Weber Implement Company, resulting in a judgment in favor of plaintiff, from which the Weber Implement Company appeals. As stated in appellant's of the case, the question here is purely one of jurisdiction.
The petition states that the Weber Implement Company is a corporation, with its chief office and place of business in the city of St. Louis, Missouri, and was selling Mitchell automobiles in the State of Missouri; that J. A. Hickman was a resident of Stoddard County, Missouri, and was assisting the Weber Implement Company in selling Mitchell cars; that the plaintiff purchased of defendant, the Weber Implement Company, an automobile paying them the sum of $ 1440. It then charges that certain representations were made by the defendants concerning this car, which representations were untrue; alleges that he relied upon the representations that were made, and the car was worthless, and prays judgment for damages.
The record before us shows that the Circuit Clerk of Stoddard County issued a summons to the Weber Implement Company directed to the Sheriff of the city of St. Louis. The Sheriff's return shows that service was had on the Weber Implement Company, a corporation, by delivering a copy of the writ and petition to the Secretary of the corporation, in charge of its usual business office, and that the President or chief officer of defendant could not be found in the city of St. Louis.
Prior to the trial, the Weber Implement Company appeared especially for filing its motion to quash the return of the summons and to dismiss the suit, appearing only for the purpose of objecting to the jurisdiction of the court--the first ground being that the petition does not state a joint cause of action against the Weber Implement Company and J. A. Hickman; that the petition shows no cause of action whatever against J. A. Hickman, and that he is joined merely for the purpose of attempting to confer jurisdiction over the defendant, the Weber Implement Company.
The court in passing upon the Weber Implement Company's motion to quash the service and dismiss the suit, recites in its order that "having seen and examined said motion, and having heard the evidence adduced in support thereof, and the argument of counsel, and being fully advised in the premises, doth order that said motion be, and the same hereby is in all things overruled." An exception was saved to this ruling. At this point in the proceeding, the plaintiff voluntarily dismissed as to J. A. Hickman.
It appears from the record that the Weber Implement Company, by its counsel, declined to appear and defend further.
The judgment recites that the plaintiff announced ready for trial upon the merits, and moved the court for judgment by default against the Weber Implement Company; that the Weber Implement Company having hitherto declined to appear and defend the action. Whereupon the cause was submitted to the jury to ascertain the amount of damages due the plaintiff on the trial ex parte. It further recites that the jury returned a verdict assessing the damages at $ 1140, whereupon judgment for that amount was rendered.
The first point made by the appellant, that the petition did not state a cause of action against it and Hickman, cannot meet our approval, as it in a number of places alleges that the defendants made certain representations which were untrue, upon which plaintiff relied in purchasing the machine, which false representations caused plaintiff to sustain a loss. For reasons hereinafter stated, however, we do not deem the question of whether Hickman was jointly liable with the plaintiff as material to the determination of this appeal. It will be remembered that the suit was dismissed as to Hickman and proceeded against the appellant, the Weber Implement Company.
There can be no doubt about appellant being correct in its conclusion of the law that a domestic corporation, such as the appellant is, cannot be sued in any counties of this State except those designated by section 1754, Revised Statutes 1909, that is, in a County where the cause of action accrued, or a County where a corporation shall have, or usually keeps an office or agent for the transaction of their usual and customary business. [Bankers Life Assn. v. Shelton, 84 App. 634, and Barnett, Haynes & Barnett v. Hotel Co., 137 Mo.App. 636, 119 S.W. 471; State ex rel. v. Jones, 270 Mo. 230, 192 S.W. 980.] And it is held in State ex rel. v. Gantt, 274 Mo. 490, 203 S.W. 964, that section 1751, Revised Statutes 1909, specifically applies to venue in actions by and against persons only (italics ours).
We therefore, hold that the Circuit Court of Stoddard County did not, and could not get jurisdiction to try this cause of this plaintiff against the Weber Implement Company merely by joining such corporation with Hickman, the other defendant, and attempt to get jurisdiction by following section 1751 for the service. On the other hand, the Circuit Court of Stoddard County has jurisdiction to try this cause against the Weber Implement Company, a corporation, provided the cause of action alleged in the petition accrued in Stoddard County. The respondent contends that the petition in this case shows on its face that the cause of action did accrue in Stoddard County, because he says the petition alleges that the plaintiff viewed the machine when he purchased it, and that he states in his petition the following: "Avers that defendants stated and represented to plaintiff that said Mitchell car was a "dandy;" that the owners of Mitchell cars had...
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