John McMenamy Investment & Real Estate Company v. Stillwell Catering Company

• Decision Date: 24 June 1913
• Citation: 158 S.W. 427,175 Mo.App. 668
• Parties: JOHN McMENAMY INVESTMENT & REAL ESTATE COMPANY, Respondent, v. STILLWELL CATERING COMPANY, Appellant
• Court: Missouri Court of Appeals

158 S.W. 427

175 Mo.App. 668

JOHN McMENAMY INVESTMENT & REAL ESTATE COMPANY, Respondent, v. STILLWELL CATERING COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

June 24, 1913

Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm Judge.

AFFIRMED. CAUSE CERTIFIED TO SUPREME COURT.

Geo. W Lubke and Geo. W. Lubke, Jr., for appellant.

A defendant corporation can be brought into court only in the manner and form prescribed by the statute. Horn v Railroad, 88 Mo.App. 469; State ex rel. v. Myers, 126 Mo.App. 544. The statute must be strictly followed in all its particulars. Railroad v. Hoereth, 144 Mo. 136; Hoen v. Railroad, 64 Mo. 506.

F. A. & L. A. Wind, F. X. Geraghty and F. A. C. MacManus for respondent.

(1) The provision ordering such summons to be directed to the sheriff of the county and State where president may be found is directory only, not mandatory. Court v. Sparks, 10 Mo. 119; State v. Churchill, 41 Mo. 41; State v. Pitts, 58 Mo. 556; Hall v. Schoenecke, 128 Mo. 669. (2) No exception was taken in trial court to the fact that the summons was directed to the sheriff of the city of St. Louis and served by the sheriff of Los Angeles. Therefore no such exception can be heard here without violation of Sec. 2081, R. S. 1909. Had such objection been made the writ could readily have been amended in circuit court. Moss v. Thompson, 17 Mo. 405; Carr v. Youse, 39 Mo. 346; Sec. 1851, R. S. 1909.

REYNOLDS, P. J. Nortoni, J., concurs. Allen, J., dissents.

OPINION

REYNOLDS, P. J.

This is an action begun in the circuit court against the Stillwell Catering Company, a corporation alleged to have been organized and existing under the laws of the State of Missouri, and against one Charles H. Stillwell, to recover rent alleged to be due on a lease executed between the corporation and Stillwell, lessees and individual lessors, to recover thirty-two months' rent for certain premises in the city of St. Louis. The lease was subsequently assigned to plaintiff, who brought the action, suing out an attachment in aid. Summons issued directly to the sheriff of the city of St. Louis who made return that neither the individual defendant nor the Catering Company could be found in the city of St. Louis and further executed it by levying on the unexpired term of the lease and garnishing certain parties, subtenants of defendant. Whereupon alias summons issued, directed to the sheriff of the city of St. Louis, but this summons appears to have come into the hands of a deputy sheriff of the county of Los Angeles, California. This officer made return of service upon the president of the defendant company and also upon the individual defendant. The return is sworn to and the official character of the officer is attested under the seal of the court by the clerk of the county court and ex officio clerk of the Superior Court of the county of Los Angeles, California, who certified that the officer serving the writ "was at the date aforesaid and now is a deputy sheriff" of the county and duly authorized to serve process in the county and that he is an officer of the court.

The individual defendant, Stillwell, appeared and filed a certified copy of his adjudication in bankruptcy and thereupon the cause was dismissed as to him. The defendant corporation entered its appearance solely for the purpose of the motion and for no other purpose, and moved the court to quash the summons and the affidavit of service thereon on Mr. Stillwell as the president of the defendant corporation, on the ground "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, the defendant corporation excepting. The corporation defendant not appearing to the cause nor pleading, the cause was submitted to the court, evidence heard and judgment by default, both on the attachment and on the merits, entered against the defendant corporation. Thereafter and within due time the defendant corporation, still confining its appearance for the purpose of making the motion, moved the court to set aside this judgment on the ground that the court was without jurisdiction to render it against the defendant because defendant had never been summoned in the cause, and because the court erred in overruling the motion theretofore made by that defendant to quash the summons issued against the corporation and the return thereon. This motion was overruled, exception duly saved and appeal duly perfected by the corporation defendant, without bond, however.

The learned counsel for appellant have presented several grounds in this court why this judgment should be reversed. The only ground, however, that we can notice is the action of the court in overruling the motion to quash the summons and its return, and the only matter before us for consideration is the ground stated in that motion why this should be done. We have heretofore set that out verbatim. We repeat that this is the only point that we can notice in this court because it has been settled by numerous decisions of the Supreme Court and of the appellate courts, that only those questions are to be considered in the appellate court that have been duly raised and presented in the trial court. The statute itself (Sec. 2081, R. S. 1909) so expressly provides. All inquiry as to the grounds of the attachment and as to the cause of action are foreclosed on this appeal, and we are confined solely and entirely to the consideration of the proposition presented by the motion to quash. This must be so, for appellant has very carefully refrained from a general appearance in the case, limiting its appearance both in the motion to quash and in the motion that was afterwards filed to set aside the order overruling that motion.

There are two points made against the summons. First, that it should have been directed to the sheriff of the county in which it was served, and, second, being a Missouri corporation, defendant can have no residence outside of the State of Missouri and cannot be reached by process outside of this State, even granting that it has no office or place of business or property within this State.

The first proposition as to the misdirection of the summons to the sheriff of the city of St. Louis instead of to an officer of Los Angeles county, California, is not well taken. That was a defect which, under the statute, could have been cured in the trial court, if its attention had been called to it.

Section 1848, R. S. 1909, provides that the court may, at any time before final judgment, in furtherance of justice, and on such terms as may be proper, amend any record, pleading, process, entry, return, or other proceedings, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proven.

Section 1850, Revised Statutes 1909, provides that the court shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.

Section 1851, Revised Statutes 1909, provides that the court may, after final judgment rendered in any cause, in furtherance of justice, and on such terms as may be just, "amend in affirmance of such judgment any record, pleading, process, entries, returns or other proceedings in such cause, by adding or striking out the name of a party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by rectifying defects or imperfections in matters of form, and such judgment shall not be reversed or annulled therefor."

All these are matters which can be corrected in the trial court. If parties do not choose to have the corrections there made, and judgment goes notwithstanding the errors, the appellate court cannot reverse because of their presence. Section 2119, Revised Statutes 1909, commonly called "the Statute of Jeofails," so provides. By that section it is enacted that when a verdict shall have been rendered in any cause, the judgment thereon shall not be stayed, nor shall such judgment, nor any judgment after trial or submission, nor any judgment upon confession nihil dicit or upon failure to answer, etc., be reversed, impaired or in any way affected by reason of the following, among other matters or things: First, for want of any writ, original or judicial; second, for any default or defect of process, or for misconceiving any process, or for awarding the same to the wrong officer, or for the want of any suggestion for awarding process, or for any insufficient suggestion.

It is true that sections 1848 and 1851, supra, relate more particularly to correction of pleadings, process, etc., in the trial court, but sections 1850 and 2119, supra, cover proceedings in the appellate courts.

We cite all of these sections not only as applicable to the case at bar, but also for the purpose of emphasizing the fact that the whole spirit of our law is against reversing judgments on mere technicalities that tend in no manner to affect due and proper administration of justice and do not go to the real merits of a controversy. We have no disposition, in the light of these statutory provisions and in the light of our own conception of what amounts to due administration of the law and promotion...