Powell v. St. Louis, I. M. & S. Ry. Co
| Decision Date | 02 July 1915 |
| Docket Number | No. 13953.,13953. |
| Citation | 178 S.W. 212 |
| Parties | POWELL v. ST. LOUIS, I. M. & S. RY. CO. |
| Court | Missouri Court of Appeals |
Action by Otis Powell against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, and cause dismissed.
R, T. Railey, of Jefferson City, and N. A. Mozley, of Bloomfield, for appellant. George Munger, of Dexter, for respondent.
This is a suit for damages accrued on account of personal injuries received through the alleged negligence of defendant. The court gave judgment for plaintiff, and defendant prosecutes the appeal. The suit originated before a justice of the peace in Stoddard county. The amount sought to be recovered is $250, and it is conceded that the justice of the peace possessed jurisdiction over the subject-matter of such actions in the amount sued for. The question for consideration, however, relates to the jurisdiction of the justice, and subsequently that of the circuit court over the person of defendant.
It appears the suit was filed before Justice C. A. Crane, of Liberty township, in Stoddard county, on February 11, 1913, on which date a writ of summons was issued, returnable on the 21st day of February, 1913, at 10 o'clock a. m., and delivered to the constable for service. However, neither the writ of summons nor the return thereon are in the record, but it appears that thereafter, that is, on February 21, 1913, the justice entered judgment for plaintiff for the amount sued for by default, as the defendant in no wise appeared to the suit. Afterwards, on the 25th day of February, 1913, defendant filed its affidavit and likewise its bond for appeal before the justice, which were duly approved, and the appeal allowed to the circuit court, to which a transcript of his docket and the original papers were duly transmitted. In the circuit court defendant appeared specially and, expressly limiting its appearance for that purpose, moved the court to dismiss the cause for the reason it had not been served with process of summons therein, and no jurisdiction over its person obtained. The original summons was not among the papers in the case, and the parties stipulated such to be the fact for the purpose of disposing of defendant's motion to dismiss. It therefore does not appear from the return of the constable, if any was made, as to how defendant was served, if at all. But, touching this matter, the justice docket recites as follows:
On this record of the justice, together with the record revealing an appeal duly perfected on the part of defendant, the circuit court overruled defendant's motion to dismiss the cause either in the view that the service sufficiently appeared or that it entered its appearance and thereby waived it through perfecting the appeal. An exception was duly saved to this ruling, and defendant declined to further appear in the case, whereupon such proceedings were had as resulted in a judgment for plaintiff in affirmance of that theretofore given by the justice of the peace, and it is from this judgment defendant appeals here. Defendant insists that, though the justice of the peace possessed jurisdiction over the subject-matter, none whatever appears to have been acquired over the person of defendant, and that the court erred in overruling its motion to dismiss the cause on that ground.
Defendant is an Incorporated railroad company operating in and through Stoddard county, and, of course, the service is to be had upon it as in such cases provided. By section 7427, R. S. 1909, in suits against railroad companies for killing or injuring animals, the summons is to be served upon the station agent of the company in the township where the suit is brought, or, if there be no such agent in that township, then upon the nearest station agent in the county in which the action is pending, but it is said that this applies only to actions for killing or injuring stock. See Jordan v. Railway, 61 Mo. 52. Here the suit proceeds to recover damages on account of personal injuries alleged to have been received through defendant's negligence, and in such case the service is to be had in accordance with the provisions of sections 1766 and 1767, R. S. 1909. By section 1766 it is provided substantially that, if defendant have a business office in the county, the service is to be on the president or other chief officer of the company or, in his absence, by leaving a copy of the summons at any business office of the company in such county with the person having charge thereof, and if the president or other chief officer is not to be found in the county, and no person may be found in a business office in the county the summons may be directed as otherwise therein provided, etc. Section 1767, R. S. 1909, requires that the officer serving the summons shall express in his return on whom, how, and when the same was executed, and, if not on the chief officer, he shall express the absence of such officer or that he cannot be found. As before said, neither the summons nor the return thereon, if any, is in the record, and it appears, too, that they did not accompany the transcript and files to the circuit court. It is obvious, therefore, that the circuit court did not ascertain therefrom the manner of the service, if any, had on defendant. When the return of the officer serving the writ alone is relied upon to show jurisdiction over the person, compliance with the statutes above referred to must appear; that is to say, if the return reveals service upon an agent in charge of a business office of the company, it must show, too, that the president or other chief officer was absent or could not be found. See Rixke v. Western Union Tel. Co., 96 Mo. App. 406, 70 S. W. 265; Hoen v. Atlantic & Pacific R. Co., 64 Mo. 561; Eminence Land & Mining Co. v. Current River Land, etc., Co., 187 Mo. 420, 86 S. W. 145.
However, the return of the officer is not to be considered here, for, if ever made, it was absent from the files on the case reaching the circuit court on appeal. But it is argued the transcript of the justice is sufficient to show that service was duly had on defendant. The transcript recites, as will appear by reference to the relevant portions turned duly served on defendant as follows: "By leaving a copy of summons and petition with the agent of the St. Louis, Iron Mountain & Southern Railway Company;" also that it appeared from the return of the officer that defendant was duly served with process more than ten days before the trial. But obviously this is insufficient, if competent at all, for that it omits to show the president or other chief officer of defendant company could not be found, and that the service was load on defendant's agent at its business office. See authorities supra. But, aside from this entirely, the justice docket entries are incompetent as to the particular subject-matter. Justice courts are inferior tribunals possessing limited and statutory jurisdiction only, and do not proceed according to the course of common law, generally speaking. Therefore no intendment is allowed in their favor, and jurisdictional facts of this character must appear on the face of their proceedings, that is, somewhere in the judgment roll, and in a manner authorized by law. See Severn v. St. Louis & S. F. R. Co., 149 Mo. App. 631, 129 S. W. 477; Smith v. Rock Co., 132 Mo. App. 297, 111 S. W. 831; Briggs v. St. Louis & S. F. Ry. Co., 111 Mo. 168, 20 S. W. 32. If defendant appeared to the action before the justice and participated in the trial, such, of course, would confer jurisdiction over its person, because it thereby waived the service of process, and as to this the docket entry of the justice would be competent to speak, for the statute requires the appearance of the parties to be noted therein, See section 7404, R. S. 1909. But, though such be true, recitals in the justice docket touching the manner of service of the writ are not to be so highly regarded, for they are gratuitously made therein without authority of law. Section 7404, It. S. 1909, requires the justice to keep a docket, and prescribes certain matters to he noted therein. Among other things, the justice is required to state in his docket the time when the first process is issued and its character, and also the time when the parties appeared before him, either with or without process, or upon the return of process, but there is no requirement whatever to the effect that he shall state in his docket the manner the writ was served or whether it was served at all. Touching this the return of the constable is to speak for itself, and as a part of the roll may be looked to in support of the judgment. From an, early day it has been the rule of decision that the entries in the justice docket are competent only with respect to such matters as he is required by the statute to note therein. See Brown v. Pearson, 8 Mo. 159; Heman v. Larkin, 99 Mo. App. 294, 75 S. W. 218; Carpenter v. Roth...
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