Fraternal Bankers of America v. Wire

• Decision Date: 28 June 1910
• Citation: 129 S.W. 765,150 Mo. App. 89
• Parties: FRATERNAL BANKERS OF AMERICA v. WIRE.
• Court: Missouri Court of Appeals

129 S.W. 765

150 Mo. App. 89

FRATERNAL BANKERS OF AMERICA v. WIRE.

St. Louis Court of Appeals. Missouri.

June 28, 1910.

1. INSURANCE (§ 26) — FOREIGN INSURANCE COMPANY — SERVICE OF PROCESS.

Rev. St. 1899, § 570 (Ann. St. 1906, p. 597), providing that where defendant is a corporation organized under the laws of another state, and having an office, or doing business, in this state, the summons may be executed by delivering a copy of the writ and petition to any agent of said corporation in charge of any office or place of business, or if it has no office or business place to any officer, agent, or employé in any agency where such service may be obtained, is applicable to service of process on a foreign insurance company, where such company has not designated the superintendent of insurance to receive service.

2. PROCESS (§ 141) — RETURN OF SERVICE — CONCLUSIVENESS.

Where the service of summons is valid, the sheriff's return that he delivered a copy of the petition and writ is conclusive between the parties, in the absence of collusion and fraud between plaintiff and the officer who executed the writ.

3. JUDGMENT (§ 335) — SETTING ASIDE JUDGMENT — RIGHT OF ACTION.

Rev. St. 1899, § 570 (Ann. St. 1906, p. 597), provides that where defendant is a corporation organized under the laws of another state, and having an office or doing business in this state, summons may be served upon it by delivering a copy of the writ and petition to any officer or agent of such corporation in charge of any office or place of business, or, if it has no office or place of business, then to any officer, agent, or employé in any county where such service may be obtained. Section 777 (page 752) in the same chapter provides that, when interlocutory judgment shall be made and final judgment entered thereon against any defendant who shall not have been summoned as required by this chapter, or who shall not have appeared to the suit, such final judgment may be set aside, if defendant shall, within a specified time appear, and by a petition for review show good cause for setting aside such judgment. Held that, where a foreign corporation has been served with summons in accordance with the provisions of section 570, the service was personal, and a petition for review after the entry of judgment is not authorized by section 777.

Appeal from Louisiana Court of Common Pleas; David H. Eby, Judge.

Action by the Fraternal Bankers of America against David Wire. A general demurrer to the complaint was sustained, and plaintiff appeals. Affirmed.

Ball & Sparrow, for appellant. Jno. W. Matson, for respondent.

GOODE, J.

Declining to plead further, plaintiff appealed after a general demurrer had been sustained to the following petition: "Plaintiff for its amended petition, leave of court to file the same being first had and obtained, states that it is a fraternal beneficiary society, incorporated, organized, and existing under and by virtue of the laws of the state of Illinois, with its home office at Decatur, in said state; that defendant is a resident of Calumet township, Pike county, Mo. Plaintiff further states that on April 21, 1908, defendant instituted in this court a suit against it on a benefit certificate issued February 26, 1900, by the Acme Fraternal Union, then a fraternal beneficiary society incorporated under the laws of the state of Missouri, with its home office at Sedalia, Mo., to one Annie Wire, then a resident of the state of Missouri, payable on her death to defendant herein, alleging in his petition that since the issuance of said benefit certificate to said Annie Wire said Acme Fraternal Union had disposed of its business to this plaintiff, and that all liability under and by the terms of said benefit certificate so issued to Annie Wire, as aforesaid, by said Acme Fraternal Union, had been assumed by this plaintiff, and that by reason thereof, and of the death of said Annie Wire, the sum of $500, with interest thereon, was due him by this plaintiff. Plaintiff further states that on April 21, 1908, a summons was issued in said cause by the clerk of this court, directed to this plaintiff, which said summons was delivered to William F. Campbell, sheriff of Pike county, Mo., and alleged by him to have been executed as follows, as shown by his return thereon, to wit: `I hereby certify that at the county of Pike, township of Buffalo, state of Missouri, on this 22d day of April, A. D. 1908, in the within named suit, I served process on the within named defendant, The Fraternal Bankers of America Company being the first defendant served herein. And I further certify, that at said time and at and in the business office of said company, the defendant hereinafter described, I executed said service on said company, by delivering at and in said business office a duly certified copy of the original writ herein, and of the hereto attached copy hereof together with a duly certified copy of the original petition and of the hereto attached copy thereof to Susan Ross, who then was and ever since has been the agent of the said company defendant, a foreign corporation then and ever since having in the city of Louisiana, in the county of Pike and township aforesaid, its said business office where said process was served as aforesaid, that is to say, the business office usually had and maintained by it in the transaction of its usual, ordinary and customary business, with its said agent, Susan Ross, in charge thereof, and in said business office and in charge thereof at the time of said service of said process as aforesaid. And I further certify, that at the time of said service the resident and other chief officers of said company defendant, were absent from my said county and were not found. In witness whereof, and at the same time and place, I hereto set my hand and official name and signature. W. F. Campbell, Sheriff of Pike County, State of Missouri, by Fred Tumelty, Deputy.' Plaintiff further states that thereafter, to wit, on May 29, 1908, and during the regular May term, 1908, of this court, final judgment by default was rendered in said cause in favor of David Wire, defendant herein, and against this plaintiff, who was defendant therein, for the sum of $522.50, and execution ordered to issue therefor; said judgment being in words and figures as follows, to wit: `Now comes the above-entitled plaintiff, David Wire, by his attorney, but the Federal Bankers of America, although duly summoned, comes not, but makes default; wherefore, on motion of plaintiff by his attorney, the petition herein is taken as against the defendant as confessed. Therefore plaintiff, by his attorney, waives a jury and submits this cause to the court upon the pleadings and proof adduced; and the court, having duly heard and considered the same, finds for the plaintiff and assesses his damages in the sum of five hundred and twenty-two and 50/100 dollars ($522.50) and all costs, and it is therefore adjudged and decreed by the court that plaintiff recover of the defendant the said sum of five hundred and twenty-two and 50/100 dollars ($522.50) with interest from this date, at the rate of six per cent per annum, and all costs, and that the plaintiff have execution therefor against the defendant.' Plaintiff further states that neither it nor...