John McMenamy Inv. & Real Estate Co. v. Stillwell C. Co.

• Decision Date: 29 February 1916
• Docket Number: No. 17861.,17861.
• Citation: 267 Mo. 340,184 S.W. 467
• Court: Missouri Supreme Court
• Parties: JOHN McMENAMY INVESTMENT & REAL ESTATE CO. v. STILLWELL CATERING CO.

184 S.W. 467

267 Mo. 340

JOHN McMENAMY INVESTMENT & REAL ESTATE CO. v. STILLWELL CATERING CO.

No. 17861.

Supreme Court of Missouri, Division No. 1.

February 29, 1916.

On Motion to Modify Judgment, March 30, 1916.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by the John McMenamy Investment & Real Estate Company against the Stillwell Catering Company. From a judgment (175 Mo. App. 668, 158 S. W. 427) affirming a judgment for plaintiff, defendant appeals. Reversed and remanded.

The dissenting opinion by Allen, J., in the Court of Appeals, which is followed by the Supreme Court, is as follows:

I am unable to concur in the opinion herein written by my Brother Reynolds for the reasons indicated below.

The action was instituted in the circuit court of the city of St. Louis August 30, 1910, against the appellant, Stillwell Catering Company, a corporation, and Charles H. Stillwell, to recover $12,000 alleged to be due to the plaintiff for rent under a lease of certain premises in the city of St. Louis and the further sum of $147.91 alleged to have been expended by plaintiff in making certain repairs on the premises, which it is averred the defendants, by the terms of the lease, were obligated to make. The petition alleges that the defendant corporation, the Stillwell Catering Company, "is and at all the times mentioned in the petition was a corporation organized and existing under the laws of the state of Missouri." The following affidavit was attached to the petition: "John McMenamy, being duly sworn, on his oath says that he is the president of John McMenamy Investment & Real Estate Company, the plaintiff herein, that said plaintiff has a just demand against the defendants, and that the amount which the affiant believes the plaintiff ought to recover after allowing all just credits and offsets is the sum of $12,147.91, and that the defendant Charles H. Stillwell is a nonresident of the state of Missouri, and that the defendant Stillwell Catering Company is a corporation having no office in the state of Missouri nor any officer in the state of Missouri upon whom service of process can be had." Upon the filing of the petition and affidavit a writ of attachment and summons for both of the defendants was issued, directed to the sheriff of the city of St. Louis, returnable to the October term, 1910, of said court. At the return term thereof the sheriff made a not found return as to both defendants; his return showing that he had levied the writ of attachment upon the leasehold estate of the defendants in and to certain real estate described in the return. During the same term the plaintiff sued out an alias writ of summons returnable to the February term, 1911, directed to the sheriff of the city of St. Louis. At the return term of the alias summons the plaintiff caused the same to be filed in court with the affidavit of a deputy sheriff of Los Angeles county, Cal., attached thereto, showing that said deputy sheriff had executed the same in the said county of Los Angeles, state of California, by delivering a true copy thereof, with a copy of the petition, to Charles H. Stillwell, president of the defendant Stillwell Catering Company, on the 19th day of December, 1910; the clerk of the court of which the affiant was an officer certifying to the official character of the affiant and to his authority to serve process within the last-mentioned county and state.

At the February term of said court, 1911, the defendant Stillwell Catering Company, appearing for the purposes of the motion only, filed a motion to quash the alias summons; the ground of said motion being as follows: "That it appears from the petition in this cause that this defendant is a corporation under the laws of the state of Missouri and that under the laws of the state of Missouri this defendant cannot be served with summons without the state of Missouri, but must be served within said state of Missouri." This motion was overruled by the court; the defendant saving its exceptions to the action of the court thereupon. Thereafter the cause was dismissed by plaintiff as to the defendant Charles H. Stillwell, and judgment by default was had against defendant Stillwell Catering Company sustaining the attachment and for $5,948.63 against the interest of this defendant in the attached property. At the same term, and within four days after the rendition of this judgment the defendant corporation, again appearing specially, filed a motion to set aside the judgment for the following reasons: "(1) That the court was and is without jurisdiction to render judgment against the defendant in this cause, because this defendant has never been summoned in this cause; and (2) because this court erred in overruling the motion heretofore made by this defendant in this cause to quash the summons issued against this defendant and the return thereon." This motion was overruled, and the defendant Stillwell Catering Company duly perfected its appeal to this court.

The majority opinion holds that the only ground urged for a reversal of the judgment of which we can take notice is the action of the trial court in overruling the motion to quash the alias summons and return. This is upon the ground that only those questions are to be considered in the appellate court which have been duly raised and presented in the trial court. This, in my judgment, has no application here, for the reason that the jurisdiction of the trial court to render any judgment in the cause is challenged, and the question of jurisdiction is one which may be raised in any stage of the proceeding. The jurisdiction of the lower court, attempted to be acquired by service outside of this state, was raised by appellant's motion to set aside the judgment, the grounds of said motion being set out above verbatim; but, regardless of this, the question of jurisdiction is open at any state of the case, and may be raised for the first time in the appellate court or considered by the court sua sponte.

I am of the opinion that the trial court acquired no jurisdiction to render a judgment affecting the rights of the defendant corporation, for the reason that no service was had upon it in the state of Missouri, nor was there compliance with the statutes authorizing either service by publication or personal service beyond the limits of the state.

Section 1770, Rev. Stat. 1909, provides that in suits in partition, divorce, attachment, etc., "if the plaintiff or other person for him shall allege in his petition, or at the time of filing same, or at any time thereafter shall file an affidavit stating, that part or all of the defendants are nonresidents of the state, or is a corporation of another state, kingdom or country, and cannot be served in this state in the manner prescribed in this chapter, or have absconded or absented themselves from their usual place of abode in this state, or that they have concealed themselves so that the ordinary process of law cannot be served upon them, the court in which said suit is brought, or in vacation the clerk thereof, shall make an order directed to the nonresidents or absentees, notifying them of the commencement of the suit," etc. Section 1777 provides how such an order against nonresident, absent, or unknown defendants shall be published. Section 1778, Rev. Stat. 1909, provides in part as follows: "In any of the cases mentioned in section 1770, the plaintiff may cause a copy of the petition, with a copy of the summons, to be delivered to each defendant residing or being without this state, and at any place within the United States or their territories, twenty days before the commencement of the term at which such defendant or defendants are required to appear. * * * If the plaintiff, or his attorney of record, in any of the causes mentioned in section 1770, shall allege in his petition or at the time of filing same, or at any time thereafter shall make the affidavit required by said section, and shall file in said cause proof of service of process on any defendant or defendants, in conformity with the provisions of this section, it shall not be necessary for such plaintiff or plaintiffs to obtain the order provided in section 1770 or to procure the publication provided in section 1777. Service of process in conformity with this section shall be as effectual within the limits of this state as personal service within this state, and judgments rendered against defendants thus served shall have the same effect and force within the limits of this state as judgments rendered against defendants personally served with summons in this state." It will thus be seen that personal service beyond the limits of this state, in a suit of this character, is authorized by section 1778, supra, only when "the plaintiff, or his attorney of record, in any of the causes mentioned in section 1770, shall allege in his petition or at the time of filing the same, or at any time thereafter shall make the affidavit required by said section"; and that section (1770) provides that the plaintiff shall state in his petition, or in the affidavit filed "that part or all of the defendants are nonresidents of the state, or is a corporation of another state, kingdom or country, and cannot be served in this state in the manner prescribed in this chapter, or have absconded or absented themselves from their usual place of abode in this state, or that they have concealed themselves so that the ordinary process of law cannot be served upon them."

It seems clear that the plaintiff here did not comply with the aforesaid statutory provisions. Its petition avers that the appellant is a Missouri corporation. The affidavit appended to the petition states merely that the appellant "is a corporation having no office in the state of Missouri nor any officer in the state of Missouri upon whom service of process can be...