Jordan v. Missouri, Kansas & Texas R.R. Co.

• Decision Date: 31 October 1875
• Citation: 61 Mo. 52
• Parties: M. JORDAN, Respondent, v. THE MISSOURI, KANSAS & TEXAS RAILWAY CO., Appellant.
• Court: Missouri Supreme Court

61 Mo. 52

M. JORDAN, Respondent,

v.THE MISSOURI, KANSAS & TEXAS RAILWAY CO., Appellant.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Vernon Circuit Court.

John Montgomery, Jr., for Appellant.

I. The statute (Wagn. Stat., 294, § 26) directs that service shall be made by leaving a copy of the summons, and service by reading the summons, as was done in this case, is not sufficient. (Waddingham vs. City of St. Louis, 14 Mo., 194; Smith's Adm'r vs. Rollins, 25 Mo., 410; Stewart vs. Stringer, 41 Mo., 404; Cosgrove vs. Tebo & Neosho R. R., 54 Mo., 499.)

II. It was not necessary that the motion to dismiss or in arrest of judgment, should have specified the particulars wherein service of summons was defective.

The return of the officer is part of the record in the cause, and the error, if any, is apparent on its face and the court decides upon the question as a matter of law. (Doan vs. Boley, 38 Mo., 449; Bateson vs. Clark, 37 Mo., 31; Han. & St. Jo. R. R. Co., vs. Mahoney, 42 Mo., 471; Nordmanser vs. Hitchcock, 49 Mo., 182; Jones vs. Fuller, 38 Mo., 336.)James B. Johnson, for Respondent.

I. The demurrer and motions to dismiss and in arrest were insufficient in failing to specify wherein service of process was insufficient. (Wagn. Stat., 1021, § 48; Patterson vs. Houston, 32 Mo., 478; Pearce vs. McIntyre, 29 Mo., 423; State ex rel. vs. Addle, 42 Mo., 210; Cheely's Adm'r vs. Wells, 33 Mo., 106.)

HOUGH, Judge, delivered the opinion of the court.

This was an action for damages by fire--alleged to have been caused by one of defendant's engines--brought before a justice of the peace in Vernon county.

There was a judgment by default before the justice, from which an appeal was taken to the Circuit Court, where the judgment of the justice was affirmed, and the defendant has appealed to this court.

The defendant moved in the justice's court to set aside the judgment by default, for the reason that the court had acquired no jurisdiction over the defendant, and afterwards moved in the Circuit Court to dismiss the plaintiff's suit, for the reason that neither the justices nor the Circuit Court had acquired any jurisdiction over the defendant, for want of sufficient service of process. Defendant also moved in arrest of judgment, for the same reason. There was no appearance by the defendant to the plaintiff's action. The constable's return is as follows:

“State of Missouri,

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)

ss.

County of Vernon.

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I, G. P. L. Clinton, Constable of Walker township, hereby certify that I served the within writ on the within named Missouri, Kansas & Texas Railway Company, on the 1st day of September, 1873, by reading to and in the hearing of J. B. Williams, the agent of said M., K. at Walker station in Walker township.

GEO. P. L. CLINTON, Constable.

There are special provisions in relation to the service of process issued from justices' courts in suits against railroad corporations for the killing of stock, (Wagn. Stat., 810, § 9) and also in proceedings by garnishment. (Sess. Acts 1873, p. 58.) But they are not applicable to this action.

The statute in relation to the service of process on corporations, applicable to the present case, provides that, “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.” (Wagn. Stat., 294, § 26.) It will be seen at a glance that the return of the constable failed to show service of process on the defendant in...