Helfer v. Hamburg Quarry Company
| Decision Date | 20 July 1921 |
| Citation | 233 S.W. 275,208 Mo.App. 58 |
| Parties | JOHN H. HELFER, Respondent, v. HAMBURG QUARRY COMPANY and THOMAS LONERGAN, Appellants |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon Franklin Ferriss, Judge.
REVERSED AND REMANDED (with directions) as to Hamburg Quarry Company.
REVERSED as to Defendant Lonergan.
Judgment reversed and cause remanded with directions as to Hamburg Quarry Company. Judgment reversed as to defendant Lonergan.
Anderson & Gilbert for appellants.
John A Gilliam and Smith & Pearcy for respondent.
This action for damages arose out of the alleged malicious prosecution of an attachment suit by the defendant Hamburg Quarry Company against the plaintiff. By his petition plaintiff alleges that on February 14, 1917, the defendant Quarry Company was a Missouri corporation with a capital stock of $ 40,000, of which the plaintiff held $ 12,000 and the defendant Lonergan $ 14,000 par value; that plaintiff, defendant Lonergan, and one Rutledge (Rutledge was originally joined as a defendant but died before the trial and the action as to him was dismissed) were directors of the company; that Lonergan was president, Rutledge secretary, and the plaintiff was vice-president and general manager. It is further averred that on said date the said Quarry Company, Rutledge and Lonergan wrongfully, wantonly maliciously and without probable cause sued out an attachment against plaintiff in a justice court in the city of St. Louis, alleging that said plaintiff was indebted to the said Quarry Company in the sum of $ 138.81 and that the damages for which said action was brought was for injuries arising from the commission of some felony or misdemeanor, and that said debt was fraudulently contracted on the part of said Helfer, the defendant in said attachment suit, and that said defendants wrongfully, maliciously and wantonly and without probable cause had an attachment writ issued in said cause and levied upon the 120 shares of stock owned by the said plaintiff in said Quarry Company. It is also averred that after a change of venue the cause was tried in a justice court on a plea in abatement and resulted in a finding on behalf of said Helfer on his said plea and that no appeal was taken from the decision thereon, and that said attachment was completely dissolved and fully terminated.
It is then alleged that the acts of said defendants have caused the plaintiff to incur obligations for attorney's fees for the defense of said attachment suit in the sum of $ 1,000, and have caused him to lose time from his business of the value of $ 1,000, and have injured his standing and reputation in business, and greatly humiliated and harassed him, to his damage in the sum of $ 25,000. Judgment is asked for the sum of $ 27,000 actual damages and $ 20,000 punitive damages.
Defendant Lonergan and the Quarry Company answered separately. Lonergan by his answer sets up that he has been and is now a resident of Jackson County, Missouri, and that until his death in March, 1918, the defendant Rutledge was a resident of Chicago, Illinois; that the Quarry Company is a Missouri corporation with its chief office and place of business at Hamburg, St. Charles County, Missouri; that neither at the time the suit was filed nor at any time since has said Quarry Company maintained an office, had an agent, or done any business in the city of St. Louis. By reason of these facts it is alleged the court had no jurisdiction over the defendant Lonergan and the suit as to him cannot be maintained. The answer further set up a general denial of the allegations of plaintiff's petition.
The answer of the defendant Quarry Company was a general denial.
The cause being tried before a jury resulted in a verdict and judgment against both defendants for the sum of $ 1485 actual damages and $ 2000 punitive damages, making a total of $ 3485. From this judgment defendants Lonergan and the Quarry Company have prosecuted separate appeals.
As to the appeal of defendant Lonergan. It is first asserted in his behalf the court acquired no jurisdiction over his person by reason of the manner of service of the writ of summons upon him at Kansas City, Missouri, where he resided. By reason of the allegations of fact set forth in the petition showing that the cause of action against defendant accrued in the city of St. Louis and the defendant Quarry Company being a corporation the writ of summons was issued under the provisions of section 1180, Revised Statutes 1919, and served in Jackson County upon the defendant Lonergan as president of the Quarry Company. At the same time a copy of the writ was issued and served personally upon Lonergan in Jackson county.
The authority if any for this procedure is found in section 1190 of the statute, which authorizes a plaintiff to have a summons directed to any sheriff in the state when there are several defendants residing in different counties.
The following stipulation appears in the record:
The place and manner of bringing suits is governed by statute law. Section 1177, Revised Statutes 1919, provides that suits may be instituted: "First, when the defendant is a resident of the State, either in the county within which the defendant resides or in the county within which the plaintiff resides and the defendant may be found; second, when there are several defendants, and they reside in different counties, suit may be brought in any such county; third, when there are several defendants, some residents and others non-residents, suit may be brought in any county in which any defendant resides."
Section 1180 provides: "Suits against corporations shall be commenced either in the county where the cause of action accrued, . . . or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business."
Section 1190 is as follows: "When there are several defendants residing in different counties, the plaintiff may at his option have a summons directed to 'any sheriff in the State of Missouri,' or have a separate summons directed to the sheriff of any county in which one or more defendants may be found."
It should be noted section 1180 says nothing about bringing in other defendants in case the suit is brought against the corporation in the county where the cause of action accrued. And under the provisions of section 1190 the right of a plaintiff to bring in defendants residing in other counties applies only to a case where plaintiff sues a defendant in a county in which a defendant resides.
Under the conceded facts as disclosed by the stipulation, supra the defendant Quarry Company at the time the suit was filed did not have an office or an agent in the city of St. Louis and could not be said to be a resident of said city. It was brought within the jurisdiction of the court only by reason of the fact that the cause of action accrued in St. Louis, and it being a corporation the statute, section 1180, authorized the service of the summons upon it at Kansas City where its president resided. [See section 1192.] With this service upon the defendant Quarry Company as a basis, plaintiff attempts to bring within the jurisdiction of the St. Louis court the defendant Lonergan by having a writ of summons issued under the provisions of section 1190. This the statute does not authorize, as that section applies only to a case where one of the defendants is a resident of the county in which the suit is brought. Such construction was placed upon this statute by the Supreme Court in the case of Christian v. Williams, 111 Mo. 429, 20 S.W. 96. In that case one of the defendants did not reside but was found in the county in which the plaintiff resided and was served with process there. The plaintiff then caused a writ to issue to another county for service on another defendant in the same action. It was held that such procedure was unauthorized by the statute. [See, also, Roberts v. Stone, 99 Mo.App. 425, 73 S.W. 388, and Conrad v. McCall (Springfield Court of Appeals), 226 S.W. 265, l. c. 267.] The situation would be otherwise if the defendant Quarry Company or any other individual defendant was a resident of the city of St. Louis and served here, but such is not the case, as it was conceded that at the time the suit was instituted the defendant Quarry Company had no office or agent here and that the then defendant Rutledge was a...
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