Jackson v. Weber Implement & Automobile Co.

• Decision Date: 29 January 1923
• Docket Number: No. 3217.,3217.
• Parties: JACKSON v. WEBER IMPLEMENT & AUTOMOBILE CO.
• Court: Missouri Court of Appeals

247 S.W. 468

JACKSON v. WEBER IMPLEMENT & AUTOMOBILE CO.

No. 3217.

Springfield Court of Appeals. Missouri.

January 29, 1923.

Appeal from Circuit Court, Remiscot County; Sterling H. McCarty, Judge.

Action by James J. Jackson against the Weber Implement & Automobile Company. From an order quashing the sheriff's return, plaintiff appeals. Reversed.

Ward & Reeves and. McKay & Medling, all of Caruthersville, for appellant.

BRADLEY, J.

This is an appeal from an order quashing the sheriff's return. The return is in the usual form in such cases, reciting, among other things, that the summons was served upon Jim Daniels, he being manager and agent of defendant and in charge of its office at Caruthersville, Mo. The sole ground alleged in the motion is:

"That Jim Daniels is not the managing agent, and it is not true that the defendant has an office in Caruthersville, Mo."

The court heard, over plaintiff's objection and exception, oral evidence on the motion.

Plaintiff, appellant here, stands on two propositions. First, he contends that oral evidence could not be heard to impeach the return, and, second, that the evidence shows that Daniels was a proper person upon whom service could be had. The first proposition is the only one before us, and we will only consider that proposition.

We cannot determine a plea to the jurisdiction on a motion to quash. A motion to quash a return will lie only when the return on its face is insufficient. Buddecke v. Carrels, 203 Mo. App. loc. cit, 8, 216 S. W. 811. To the same effect are Newcomb v. Railroad, 182 Mo. loc. cit. 704, 81 S. W. 1062; Robertson v. Ackermann, 173 Mo. App. 103, 155 S. W. 877; Cornwall v. Bottling Co., 128 Mo. App. 163, 106 S. W. 591; Regent Realty Co. v. Packing Co., 112 Mo. App. 271, 86 S. W. 880; Stewart et al. v. Stringer et al., 41 Mo. 401, 97 Am. Dec. 278; Smoot v. Judd, 184 Mo. 508, 83 S. W. 481; Lewis Publishing Co, v. Rural Publishing Co. (Mo. Sup.) 181 S. W. loc. cit. 102; Barnett v. Barnett, 207 Mo. App. 683, 230 S. W. 337. If the lack of jurisdiction appears on the face of the petition it is a question of law which should be met by demurrer; but if the alleged lack of jurisdiction is based upon facts dehors the petition and the return, such question would be met by a plea to the jurisdiction. Buddecke v. Carrels, supra, and cases there cited.

The cause at bar is to be distinguished from Bauch v. Weber Flour Mills Co. (Mo. App.) 238 S. W. 581. In that case the execution plaintiff...