Hoen v. Atlantic & Pacific R.R. Co.

Citation64 Mo. 561
PartiesWILLIAM HOEN, Respondent, v. THE ATLANTIC & PACIFIC RAILROAD COMPANY, Appellant.
Decision Date30 April 1877
CourtUnited States State Supreme Court of Missouri

Appeal from Jackson County Special Law and Equity Court.

James Carr, for Appellant, cited: Wagn. Stat. 294, §§ 26, 27; Hewitt vs. Wetherby, 57 Mo. 276; Waddingham vs. St. Louis, 14 Mo. 190; Smith, adm'r vs. Rawlings, 25 Mo. 410; Stuart vs. Stringer, 41 Mo. 404; Jordon vs. M., K. & T. Ry., 61 Mo. 52; Welton vs. Pac. R. R., 34 Mo. 358; Williams vs. Hingham etc., Turnpike Co., 4 Pick. 341; Bartlett vs. Crozier, 17 John. 456; Galpin vs. Page, 18 Wal. 366; Blanton vs. Jamison, 3 Mo. 52.

W. E. Sheffield, for Respondent.

HENRY, Judge, delivered the opinion of the court.

This was a suit instituted in the Special Law and Equity Court for Jackson county by plaintiff against defendant, and the principal question is as to the sufficiency of the service of the summons.

The following is the sheriff's return:

“I, C. B. L. Booth, Sheriff of Jackson county, certify that I executed this command by leaving a copy of this summons, together with a copy of the petition thereto attached, at a business office of the within named defendant, with A. W. Dickinson the person having charge thereof, in the absence of the president or chief officer of the defendant.

Done in Jackson county Missouri, this 6th day of January, 1875.”

Wagn. Stat. 294, § 26, provides that “when any summons shall be issued against any banking or other incorporated company, service on the president or other chief officer of such company, or in his absence by leaving a copy thereof at any business office of said company with the person having charge thereof, shall be deemed a sufficient service, and if the corporation have no business office in the county where suit is brought, or if no person shall have charge thereof, and the president or chief officer cannot be found in such county, a summons shall be issued and directed to the sheriff of any county in this State where the president or chief officer of such company may reside or be found, or where any office or place of business may be kept of such company, and the service thereof shall be the same as above.”

Section 27 is as follows: “On the return of such summons served as aforesaid, the officer serving the same shall express in his return on whom, how and when the same had been executed, and if not on the chief officer, he shall express the absence of such officer, or that he cannot be found.”

These two sections taken together make very clear the meaning of section 26. If the service be not on the chief officer, the officer in his return must state his absence or that he cannot be found. That he cannot be found where? The county is the sheriff's bailiwick, and when a summons is delivered to him to be served, it is his duty to seek the party through his county, and then if he fail to find him, his return is that he could not find him in the county. But if he know that the president or chief officer of an incorporate company, against which he has a summons to serve, is absent from the county, the 28th section authorizes him...

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24 cases
  • Kurre v. American Indem. Co. of Galveston, Tex.
    • United States
    • Court of Appeal of Missouri (US)
    • 4 Junio 1929
    ...... the case of Hoen v. The Atlantic & Pacific R. Co., . 64 Mo. 561, construing such section, ......
  • Kurre v. American Indemnity Co.
    • United States
    • Court of Appeal of Missouri (US)
    • 4 Junio 1929
    ...1192, Revised Statutes 1919, providing for the service of summons upon a corporation, and particularly to the case of Hoen v. The Atlantic & Pacific R. Co., 64 Mo. 561, construing such section, and holding that the return of the sheriff to a summons, in order to be valid, should recite that......
  • Cudahy Packing Co. v. Chicago & Northwestern Railway Co.
    • United States
    • United States State Supreme Court of Missouri
    • 9 Abril 1921
  • Hatch v. Alamance Ry. Co
    • United States
    • United States State Supreme Court of North Carolina
    • 2 Junio 1922
    ...v. R. Co., 14 Mees. & W. 142; Walton v. Universal Salvage Co., 16 Mees. & W. 438; Brydolf v. Wolf, 32 Iowa, 509; Hoen v. A. & P. R. Co., 64 Mo. 561; Lehigh Valley Ins. Co. v. Fuller, 81 Pa. 398. The appeal shows, not a technical irregularity in the service of the summons; but a total failur......
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