Little Rock Trust Co. v. Southern Missouri & A. R. Co.

• Decision Date: 30 March 1906
• Citation: 93 S.W. 944,195 Mo. 669
• Court: Missouri Supreme Court
• Parties: LITTLE ROCK TRUST CO. v. SOUTHERN MISSOURI & A. R. CO. et al.

93 S.W. 944

195 Mo. 669

LITTLE ROCK TRUST CO. v. SOUTHERN MISSOURI & A. R. CO. et al.

Supreme Court of Missouri, Division No. 1.

March 30, 1906.

1. APPEAL—OBJECTIONS IN TRIAL COURT— NECESSITY.

Where the matters complained of on appeal are apparent on the face of the record proper, and go to the question of the jurisdiction of the court over the person of defendants and over the res, the Supreme Court has jurisdiction to review the matters, though they were never raised or passed on by the trial court.

2. PLEADING—JOINDER OF DEFENSES.

Rev. St. 1899, § 605, which provides that defendant may set forth by answer as many defenses as he may have, contemplates but one answer, which may set up matter in abatement and matter in bar at the same time, and permits a defendant to unite in the same pleading a plea to the jurisdiction with a plea to the merits without waiving the question of jurisdiction.

3. JUDGMENT—VACATION — MOTION — QUESTIONS RAISED.

A motion to set aside a judgment establishing a railroad lien on the ground that the court acquired no jurisdiction under the allegations of the petition over one railroad company because it was not made a party to the action, and acquired no jurisdiction over the other railroad company because it was not served with process or brought into court, does not challenge the petition; but the point of the objection is that, while one railroad company was made a party defendant in the action, it was not brought into court in any manner, and that, while the summons was directed to that railroad company, it was served on another company not made a party to the action, and therefore not required to come into court to defend the same.

4. RAILROADS — LIENS — ENFORCEMENT — PARTIES.

Rev. St. 1899, § 4245, provides that any corporation owning or operating a railroad to which a lien may apply shall be made a party defendant in suits for enforcing the lien. Section 4246 provides that the pleadings and process and other proceedings shall be the same as in ordinary civil actions. Section 4248 provides that judgment by default shall be rendered against every defendant who after being summoned shall not appear. Held, that an owner of a railroad is a necessary party in a suit to establish a lien against the road.

5. PROCESS—MISNOMER OF DEFENDANT.

A suit to establish a railway lien was brought against the S. M. & A. Railroad Company. The summons against the company was served on the St. L. M. & S. Railroad Company. The latter company had no connection with the construction of the road or the question of whether a lien should be fastened on the property. Held, that the question was not one of misnomer of a party defendant, but whether service on one not made a party nor shown to have any connection with the subject-matter of the suit was sufficient to bring into court one who was made a party.

6. APPEAL—PARTIES.

The petition in a suit to establish a railroad lien alleged that the property sought to be charged with the lien was the property of the S. M. & A. Railroad Company. The company was never brought into court, but the summons was served on another railroad company having no connection with the construction of the road or the question of whether a lien should be fastened on the property. A judgment was rendered establishing a lien against the property. Held, that an appeal from a judgment refusing to vacate the judgment could be taken by the S. M. & A. Railroad Company without joining therein the company on which the summons was served.

7. SAME—ORDER ALLOWING APPEAL.

A judgment was rendered establishing a lien against the property of a railroad company. It was not served with process. Another company, not made a party, was served with process. A motion to set aside the judgment and an affidavit for an appeal from an order refusing to set aside the judgment was made on behalf of both railroad companies. Held, that both companies appealed, though the clerk, in entering judgment, used the singular number in the body of the order allowing the appeal in referring to the application and affidavit.

8. CORPORATIONS—ACTION AGAINST—PROCESS —SERVICE—RETURN—SUFFICIENCY.

Under Rev. St. 1889, § 995, providing that a summons in an action against a corporation may be served "by leaving a copy thereof at any business office" of the corporation with the person having charge thereof, a return of service of process in an action against a corporation, which does not specify that the service was had on the agent at the business office of the corporation, is insufficient.

9. PROCESS — RETURN OF SERVICE — AMENDMENT —DISCRETION OF COURT — NOTICE TO DEFENDANT—NECESSITY.

A sheriff serving a process cannot, without notice to defendant, file an amended return showing proper service; the right to amend the return resting in the sound discretion of the court, and the party to be affected by the amendment having a right to a day in court.

10. RAILROADS — LIEN — ENFORCEMENT — PARTIES—PROCESS.

A suit to charge the property of a railroad company with a lien was brought against the company alleged to be the owner of the road. The summons was served on another company, which was not made a party defendant, and there was no allegation that it operated the road or that it owed any of it. Held, that the service of process was not sufficient to authorize the court to establish a lien as against the company owning the road.

11. SAME—PARTIES.

A railroad company which has acquired a railroad is a necessary party to an action seeking to establish a railroad lien on the property.

12. SAME — ASSIGNABILITY OF LIEN — STATUTES.

Rev. St. 1899, § 4256, providing that any two or more persons having filed mechanics' liens may assign to each other or to any other person all their interest in and to such lien, and the assignee may sue thereon in his own name, authorizes any one or any number of different persons who have filed separate railroad liens to assign them to each other or to any other person, and permits the assignee to maintain an action thereon.

Appeal from Circuit Court, Butler County, J. L. Fort, Judge.

Action by the Little Rock Trust Company against the Southern Missouri & Arkansas Railroad Company and others. From a judgment overruling a motion to set aside a default judgment, certain defendants appeal. Reversed.

L. F. Parker, W. J. Orr, and James Orchard, for appellants. Barclay, Shields & Fauntleroy, for respondent.

MARSHALL, J.

This is an action to establish a railroad lien, under the provisions of art. 4, c. 47, Rev. St. 1899, for $11,990.43 and interest, on the property and roadbed of the Southern Missouri & Arkansas Railroad Company. The petition named Irving M. Dittenhoeffer and the Southern Missouri & Arkansas Railroad Company as the defendants, and then charged the incorporation of the plaintiff under the laws of Arkansas and of the defendant railroad company under the laws of the state of Missouri, and alleged that the railroad company owned and operated a railroad in the state of Missouri, from Poplar Bluff, in the county of Butler, and thence through said county, to the dividing line between the states of Missouri and Arkansas; that the defendant Dittenhoeffer was a nonresident of the state of Missouri and resided in the state of New York; that at the times mentioned in the petition the railroad company was engaged in constructing said road; that the railroad was being constructed under contract in writing between one J. H. McCarthy and the defendant Dittenhoeffer, but that the work was being done for the defendant company, and that Dittenhoeffer was simply acting as agent and trustee of the company, and McCarthy was the contractor or subcontractor and constructed the road and the railroad company accepted it; that McCarthy did the work and furnished materials in and about said construction of the aggregate value of $36,354.58, and received on account thereof the sum of $24,364.05, leaving a balance due him of $11,990.43; that the work and materials were reasonably worth the prices charged, and that, within 90 days after the completion of the work, to wit, in September, 1902, said McCarthy filed a lien against the road therefor in the office of the clerk of the circuit court of Butler county and caused a copy thereof to be filed in the office of the Secretary of State; that thereafter and before the institution of this suit McCarthy assigned his claim and lien to the plaintiff; and judgment was prayed against Dittenhoeffer personally and for a lien against the roadbed and property of the Southern Missouri & Arkansas Railroad Company in the state of Missouri. On the 4th of December, 1902, a summons was regularly issued and directed to said Dittenhoeffer and the Southern Missouri & Arkansas Railroad Company requiring them to appear at the next term of court, to be held on the first Monday in February, 1903. The sheriff's return on said summons was as follows:

"Executed the within writ in the county of Butler, and state of Missouri, on the 5th day of December, 1902, by delivering a copy of this writ and petition to J. A. Busby, local station agent of the St. Louis, Memphis & Southeastern Ry. Co., at the office of said company, the president and other officers being absent from the county. [Signed] Henry Turner, Sheriff Butler County, Missouri.

"I. M. Dittenhoeffer not found in my county.—Henry Turner, Sheriff."

Nothing was said in the sheriff's return about the Southern Missouri & Arkansas Railroad Company. Neither was any attempt made otherwise to bring in the Southern Missouri & Arkansas Railroad Company or said Dittenhoeffer. Neither those two defendants nor the St. Louis, Memphis & Southeastern Railway Company appeared in any manner whatever prior to the judgment. On the 8th of June, 1903, the plaintiff dismissed the suit as to Dittenhoeffer.

On the 11th of June, 1903, the case was called for trial and judgment entered as follows: "Little Rock Trust Company, Plaintiff, v. ...