Missouri, K. & E. Ry. Co. v. Hoereth

• Decision Date: 17 May 1898
• Court: Missouri Supreme Court
• Parties: MISSOURI, K. & E. RY. CO. v. HOERETH.

45 S.W. 1085

144 Mo. 136

MISSOURI, K. & E. RY. CO. v. HOERETH.

Supreme Court of Missouri, Division No. 2.

May 17, 1898.

INJUNCTION — SCOPE OF RESTRAINING ORDER — SERVICE OF PROCESS ON CORPORATION — REMEDY AT LAW.

1. The granting of a temporary injunction to restrain defendant therein from interfering with or hindering plaintiff railroad company in constructing its road over certain lands, where the intention was only to stop threats or violence on defendant's part, and it was not shown that at that time defendant had contemplated a suit to regain possession of the land, does not restrain defendant from afterwards instituting and prosecuting an action for forcible entry and detainer.

2. Rev. St. 1889, § 2527, providing that when a corporation has no office in the county, or no person can be found in charge thereof, and the president or chief officer cannot be found in the county, a summons "shall" be issued, directed to the sheriff of any county in the state where such office or officer may be, prescribes the only mode of service of process on corporations in such cases; and a service in a forcible entry and detainer suit by posting notices as provided by section 5094, which is not applicable to corporations, gives no jurisdiction over defendant company.

3. An injunction will not lie to restrain the enforcement of a judgment by default entered in a justice court, which is void on its face because the court never acquired jurisdiction of the person of defendant, since defendant has an adequate remedy at law.

Appeal from circuit court, Montgomery county; E. M. Hughes, Judge.

Action by the Missouri, Kansas & Eastern Railway Company against Adam Hoereth to vacate a judgment. From a decree for plaintiff, defendant appeals. Reversed.

Emil Rosenberger and J. D. Barnett, for appellant. Geo. P. B. Jackson, for respondent.

BURGESS, J.

This is a proceeding in equity, by which plaintiff seeks to have annulled and vacated the judgment of a justice of the peace in favor of defendant, Hoereth, for the possession of a certain tract of land, and $1,000 damages, rendered in action of forcible entry and detainer, wherein Hoereth was plaintiff, and the Missouri, Kansas & Eastern Railway Company was defendant. Plaintiff had judgment in the court below, from which defendant appealed. At the time of the institution of the action of forcible entry and detainer, as well, also, as at the time of the commencement of this suit, plaintiff was a corporation duly incorporated under the laws of Missouri for the purpose of constructing and operating a railroad through the county of Montgomery, and other counties, in this state. The roadbed was constructed through the land of the defendant, in said county, by virtue of a conveyance of the right of way from defendant to the Missouri Central Railway Company, and by a conveyance from that company to this plaintiff, which right of way was therein described as a strip of ground 100 feet wide over and across the W. ½ of the E. ½ of the S. W. ¼ of section 34, township 46, range 6 W., in Montgomery county. On the 11th day of October, 1892, the judge of the circuit court of Montgomery county, upon the application of this plaintiff, granted a temporary injunction restraining the defendant, Adam Hoereth, and others, their servants and agents, "from interfering, or in any way hindering the plaintiff, its servants, agents, and employés, from going upon the lands described in the petition" for an injunction, and from constructing their railroad over and across the same, or from in any way or at any time assembling or going upon said land, or from in any way, by words or arms, threatening the servants of the plaintiff, or attempting in any way to intimidate them, or drive them away from said lands, in the prosecution of their work in constructing said railroad, or to interfere in any way or manner with the plaintiff, its agents, servants, or employés, in their use, occupation, and possession of said lands so described in said petition, until the further order of the court. And the court further found that the lands referred to in said petition for an injunction, and in the restraining order, are each and both the same as described in the petition in this suit. The temporary injunction was served on the said Hoereth on the 12th day of October, 1892. On the ____ day of January, 1893, and while the said injunction suit was still pending and undetermined, the said Hoereth instituted an action of forcible entry and detainer before L. A. Thompson, a justice of the peace of Montgomery county, Mo., against this plaintiff, in which it was stated that on October 10, 1892, said Hoereth was lawfully in possession of said land, and that on said day this plaintiff forcibly entered into the possession of the said premises, and forcibly detained the possession thereof, and that by reason thereof said Hoereth claimed to have sustained $1,000 damages. A summons was issued in said proceeding to the sheriff, or any constable in Montgomery county, commanding them to summon this plaintiff to appear before said justice on the 7th day of February, 1893, which summons was returned by said sheriff on the 1st of February, 1893, not served, because neither this plaintiff, nor any agent or officer of said company upon whom legal service could be had, was found in Montgomery county; and thereupon the said justice ordered that notices should be set up for 10 days in four public places in Montgomery township, Montgomery county, Mo., notifying this plaintiff to appear before said justice on the 25th day of February, 1893, which notices were set up as ordered. Plaintiff during all this time had an office in the city of St. Louis, but none in Montgomery county, Mo., and had no actual notice of the proceedings in said forcible entry and detainer case. On said 25th day of February, 1893, the said Hoereth and his attorney appeared before said justice but plaintiff did not appear; and, upon the evidence adduced, the justice of the peace found that this plaintiff was guilty of the forcible entry and detainer as charged in said proceeding, by reason of having forcibly and unlawfully entered upon and detained the said premises, and that the plaintiff therein (said Hoereth) was damaged thereby in the sum of $1,000; and thereupon said justice rendered judgment in favor of the said Hoereth, plaintiff in said suit, for the possession of the land above described, and for $2,000 damages, and for rent at the rate of $50 per month after the date of said judgment. A transcript of all such proceedings and judgment has been filed in the office of the clerk of the circuit court of Montgomery county, Mo. The petition alleges that Hoereth, until enjoined, was threatening to have execution issued on the said judgment of forcible entry and detainer, and to interrupt and interfere with plaintiff in the entry and detainer, and to interrupt and interfere with plaintiff in the use and occupation of said 100-foot strip of ground. On these facts the court declared the law to be that the institution and prosecution by said Hoereth of said forcible entry suit while the injunction suit of this plaintiff against his was still pending and...