Fisher v. Fredericks

• Decision Date: 31 March 1863
• Citation: 33 Mo. 612
• Parties: AARON A. FISHER et al., Respondents, v. CHARLES H. FREDERICKS AND HIRAM MORRIS, Appellants.
• Court: Missouri Supreme Court

33 Mo. 612

AARON A. FISHER et al., Respondents,

v.CHARLES H. FREDERICKS AND HIRAM MORRIS, Appellants.

Supreme Court of Missouri.

March Term, 1863.

Appeal from St. Louis Circuit Court.

This suit was instituted in the St. Louis Circuit Court by plaintiffs against the defendants and appellants, as partners doing business in the city of St. Louis under style of C. H. Fredericks & Co. There was no affidavit that the defendant Morris was a nonresident. The summons issued July 26, 1859, against both defendants, directed to the sheriff of St. Louis county, and was served on defendant Frederick July 28, 1859, but as to defendant Morris there was no return by the sheriff. There was filed an affidavit of one Edwin P. Gibson, stating that on the 5th day of August, 1859, he served notice of this suit, with a copy of the petition, on Hiram Morris, the defendant. The affidavit did not state, nor did it from the record elsewhere appear, where defendant Morris was at the time of this service. The defendant Morris did not appear in this suit. After judgment against him by default, he appeared only for the purpose of his motion in arrest of judgment, setting forth that he had no notice of the institution of this suit, and denying also that his person was within the jurisdiction of that court. This motion was overruled and excepted to by said Morris, who thereupon brought his appeal to this court.

C. F. Burnes, for appellants.

I. The defendant Hiram Morris was never notified of the institution of this suit, as required by law.

II. It does not appear that defendant Morris, at the time of the commencement of this suit, was residing within this State, or at any place within the United States or their Territories.

III. The Legislature of this State has no power to extend the jurisdiction of its courts beyond the territory of the State; therefore, § 18 of art. 5, chap. 128, 2 Mo. R. C. 1855, is void.

Jones & Sherman, for respondents.

I. As to the defendant Morris, the motion in arrest of judgment was rightfully overruled. The service on the defendant Morris was good and sufficient. (R. C. 1855, § 18, art. 5, Practice in Civil Cases.)

II. In the case of defendant Fredericks, the motion to set aside judgment and for new trial was rightfully overruled. The proof of partnership offered by plaintiff, as admitted in evidence by the court, was in compliance with the statute. (R. C. 1855, chap. 62, § 49.) The sufficiency of the evidence was left to the court sitting as a jury. The...