Heath v. Missouri, Kansas & Texas Ry. Co.

• Decision Date: 31 October 1884
• Citation: 83 Mo. 617
• Parties: HEATH v. THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

83 Mo. 617

HEATH

v.THE MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Howard Circuit Court.--HON. G. H. BURCKHARTT, Judge.

REVERSED.

Smith & Krauthoff with Thos. J. Portis for appellant.

When this suit was brought, April 19th, 1876, also the date of service upon E. E. Dunnaway, agent at Estill depot, the railroad was in the hands of a receiver. The plaintiff had his option to proceed by action either against the receiver in his official capacity, leave of court that appointed the receiver being first obtained, or, under our statute, against the railroad company itself as such. High on Receivers, §§ 395 and 397; O. & M. R. R. Co. v. Fitch, 20 Ind. 498, affirmed in Alsop v. McKinney, 20 Ind. 509. The plaintiff chose to proceed by action against the railroad company itself. The receiver's possession is not the possession of the corporation, but is antagonistic thereto, and the company cannot control either the receiver or his employes. High on Receivers, § 396; O. & M. R. R. Co. v. Davis, 23 Ind. 553, 560; Angel v. Smith, 9 Ves. 335; Wiswall v. Sampson 14 How. (S. C.) 52. The agents, servants and employes required in operating the railroad while in the hands of a receiver, are therefore the agents, servants and employes of such receiver, and not of the railroad company. Maera v. Holbrook, 20 Ohio St. 137, 149; McKinney v. O. & M. R. R. Co., 22 Ind. 99, 100. That the agents, servants and employes of the receiver are not also the agents, servants and employes of the company is evident from the fact that a corporation itself cannot be held responsible for the negligence of the servants of a receiver operating the road. O. & M. R. R. Co. v. Davis, 23 Ind. 553; O. & M. R. R. Co. v. Fitch, 20 Ind. 498. the servants whose negligence is complained of must be the servants of the company and under the control of the company, in order to make the company liable. See authorities above cited, also McKinney v. O. & M. R. R. Co., 22 Ind. 100.

R. C. Clark and Cosgrove, Johnston & Pigott for respondent.

If the return of the constable, upon its face, shows a proper service of the writ of summons upon defendant it is conclusive as to the facts therein recited, whether true or false, except in an action against the constable for a false return. It cannot be attacked in a proceeding of this kind. Phillips v. Evans, 64 Mo. 23; Bruce v. Holden, 21 Pickering 187, et seq.; Hallowell v. Page, 24 Mo. 590; Dellinger's adm'r v. Higgins, 26 Mo. 180; Reevesv. Reeves, 33 Mo. 28; Jeffries v. Wright, 51 Mo. 215; Magrew v. Foster, 54 Mo. 258; Wheeler v. R. R. Co., 24 Barb. 414. Where it is denied that process was served upon the agent of a corporation, as the return of a sheriff shows, the fact must be put in issue by the plea in abatement. * * * The defence attempted to be interposed by appellant is one that may properly be interposed by plea, but can only be done by one filed at the earliest opportunity. Union Nat. Bank v. Kappers, (S. C.) Illinois, January term, 1879; 22 Ill. 9; 22 Ill. 197. The law presumes that the constable did his duty and served the writ upon the defendant's agent, and not the agent of some one else. Henry v. Dulle, 74 Mo. 451; School Directors v. School Directors, 73 Ill. 255; Long v. Joplin M. & S. Co., 68 Mo. 431; Jones v. Relfe, 3 Mo. 388: Davis v. Bent, 7 Iowa 55.

MARTIN, C.

This is a proceeding by motion to quash an execution on the ground that the defendant in the case in which it was issued was not served with process, and has never waived such service. The action was brought in Franklin township, Howard county, before a justice of the peace for killing on the 10th day of May, 1875, stock belonging to the plaintiff, valued at $150. The action was commenced on the 19th day of April, 1876, and process served on the same day. On the 27th day of May, 1876, judgment in the value claimed was given in plaintiff's favor as upon a default. A transcript of the record having been filed in the circuit court, the execution complained of was issued from that tribunal.

In the motion to quash it is alleged that the original process was not served upon the defendant; that defendant had no agents, servants or employes in this state capable of being served with process; that at the time of the supposed service the railroad and all the property of defendant had been taken from its management and control and was being operated by a receiver, appointed for that purpose by the circuit court of the United States for the Western District of Missouri, and that the supposed service of process was upon the agent of the receiver, if upon any one, and not upon the defendant or any of its agents, servants or employes. On trial of the motion it appeared from the order appointing the receiver and other evidence that the defendant was not in control of its road at the time of the alleged injury to plaintiff's stock, or at the date of the supposed service of process, but that it was being controlled and operated by the receiver under appointment of said court. The transcript showing the time and manner of service was submitted in evidence and thereupon the motion to quash was overruled, from which action of the court the defendant appeals.

I. The fact that the property and most of the franchises of defendant were held in custody by a court of equity for the purpose of enforcing satisfaction of specific claims against them, does not work a dissolution of the defendant as a corporation, or a cessation of its franchises. The corporate existence of defendant continues, although its dominion over its road and property may be in a state of suspension until they shall be returned to it by the court taking them in charge. Consequently, the defendant may be sued upon all causes of action for which it may be or become liable, in personam; and no license from that court having charge of its property is necessary as a condition precedent to the bringing of such actions. No judgment thus obtained could be satisfied from its property in the hands of a receiver, except through the administering assistance of the court appointing him. After its property is returned to its custody by the court taking charge of it, such judgment could be enforced against it, in the usual way, on final process. There is nothing, therefore, impossible or illegal in a suit against the defendant, notwithstanding the receivership.

As a general rule, a corporation cannot be subjected to obligations or liabilities incurred by the receiver or his agents or servants while in charge of the corporate property. The receiver, in his official capacity, and the property in his charge are alone liable in such causes of action, a fact which is expressly recognized in the order appointing the receiver, who operated the defendant's road. It follows, therefore, that if the action of plaintiff had been properly defended, he could not have recovered judgment, because the injury complained of resulted from the acts of the receiver or his agents within the scope of his official duty in operating the road. The defendant had nothing to do with it, and, by virtue of the receivership, was prohibited from operating the train, which came in contact with the plaintiff's stock. It could not have done so, without violating the order of the court dispossessing it of its road. I may remark in this connection, that it has been held in the state of Indiana, that, notwithstanding a railroad may be in the hands of a receiver, the corporation remains liable in all statutory actions like the one sued on in this case, although accruing after the receiver's appointment, and by reason of his own or his agents' acts; and that such actions may be brought in the usual mode prevailing in that state, by service of process on the conductors of passing trains. O. & M. R. R. Co. v. Fitch, 20 Ind. 498; McKinney v. O. & M. R. R. Co., 22 Ind. 99; Louisville, New Albany & Chicago R. R. Co. v. Cauble, 46 Ind. 277. But on examination of these decisions it will be found that they were rendered in pursuance of state statutes expressly subjecting the corporations to such actions. It is provided in said statutes, in express terms, that the statutory action for killing or injuring stock may be brought against the company whether...