Regent Realty Company v. Armour Packing Company

• Decision Date: 18 April 1905
• Citation: Regent Realty Company v. Armour Packing Company, 112 Mo. App. 271, 86 S. W. 880 (Mo. App. 1905)
• Parties: REGENT REALTY COMPANY, Defendant in Error, v. ARMOUR PACKING COMPANY, Plaintiff in Error
• Court: Missouri Court of Appeals

86 S.W. 880

112 Mo.App. 271

REGENT REALTY COMPANY, Defendant in Error, v. ARMOUR PACKING COMPANY, Plaintiff in Error

Court of Appeals of Missouri, St. Louis

April 18, 1905

Appeal from St. Louis City Circuit Court.--Hon. John A. Blevins Judge.

AFFIRMED.

STATEMENT.

We adopt the following statement from the brief of plaintiff in error:

"The defendant in error filed its petition in the circuit court of the city of St. Louis on the fifteenth day of February, 1904 and on the same day there was issued out of that court a writ in the usual form, commanding the sheriff to summon the plaintiff in error to appear at the following April term of the circuit court and answer the complaint. In due time the sheriff made return upon the writ as follows:

"'Served this writ in the city of St. Louis, Missouri, on the within named defendant, the Armour Packing Company (now Armour & Co.) (a corporation) this seventeenth day of February, 1904 by delivering a copy of the writ and petition as furnished by the clerk to Mr. Boyd, manager of the said defendant corporation, he being in said defendant's usual business office and in charge thereof. The president or other chief officer of said defendant could not be found in the city of St. Louis at the time of service.

"'JOSEPH F. DICKMANN, Sheriff,

"'By T. WORLMANN, Deputy.'

"At the proper time the defendant below filed its motion to quash the return (appearing specially and for that purpose only) upon the ground that it was insufficient in law to confer upon the court jurisdiction of the person and because it was untrue in fact. When the motion came on to be heard the defendant offered and the court received in evidence the charter of Armour Packing Company and the charter of Armour & Company, showing them to be entirely separate and distinct corporate entities, and also the affidavits of Charles S Pitkin, its secretary, and Charles Boyd, an employee of Armour & Company, on whom the writ was served. These affidavits are as follows:

"'State of Missouri, City of St. Louis, ss.

"'Charles Boyd, being first duly sworn on his oath says that he is manager of the branch house of Armour & Company in the said city of St. Louis; that the said Armour & Company is a corporation organized under the laws of the State of New Jersey and doing business in the State of Missouri under authority of the laws of the State of Missouri; that this affiant is not, and was not on the fifteenth day of February 1904, nor has he at any time since been manager of the Armour Packing Company nor employed by the said Armour Packing Company, nor agent for Armour Packing Company nor otherwise connected with the said Armour Packing Company.

"'CHARLES BOYD.

"'Subscribed and sworn to before me this twelfth day of March, A. D., 1904.

"'My commission expires June 30, 1907.

"LULU R. COLVIN,

"'Notary Public.'"

"'State of Missouri, City of St. Louis, ss.

"'Charles S. Pitkin, being first duly sworn, on his oath deposes and says that he is now and has been for more than one year last past secretary of Armour Packing Company, a corporation duly organized and now existing under the laws of the State of New Jersey, and has knowledge of the business and affairs of the said corporation, and of his own personal knowledge knows that the said corporation, Armour Packing Company, did not on the fifteenth day of February, 1904, have nor has it since had, an office or place of business within the city of St. Louis, Missouri, and was not engaged in the transaction of business in the said city nor is it now so engaged.

"'CHARLES S. PITKIN.

"'Subscribed and sworn to before me this eleventh day of March, A. D. 1904.

"'My commission expires October 3, 1907.

"'GEORGE T. GRISSOM,

"'Notary Public.'"

To controvert this evidence defendant in error offered a number of letters from the Armour Packing Company, addressed to Malcolm Macbeth, 108 N. Eighth Street, St. Louis, Mo., commencing with November 12, 1903, and ending January 9, 1904, by which letters it is shown that the Armour Packing Company occupied premises during this period at Osceola, Missouri, as a butter and egg depot.

For the purposes of the motion it was admitted by plaintiff in error that all the shares of the capital stock of the corporation, Armour Packing Company, except a few, are held and owned by the corporation Armour & Company. The court overruled the motion to quash the return, the Armour Packing Company declined to appear to the merits, and judgment by default was rendered against it. To reverse the judgment it sued out a writ of error from this court. The motion to quash and the evidence heard thereon were duly preserved by bill of exceptions filed in the case.

Judgment affirmed.

Thomas Bond for defendant in error.

(1) (a) It is the settled law of this State that the return of a sheriff on process regular on its face and showing the fact and mode of service is conclusive upon the parties to the suit. Its truth can be controverted only in a direct action against the sheriff for false return. Hallowell v. Page, 24 Mo. 590; Smoot v. Judd, 83 S.W. 484; Decker v. Armstrong, 87 Mo. 316; State v. O'Neil, 4 Mo.App. 221; Phillips v. Evans, 64 Mo. 23; State ex rel. v. Finn, 100 Mo. 429; Heath v. Railway 83 Mo. 617; McDonald v. Leewright, 31 Mo. 29; Delinger v. Higgins, 26 Mo. 183; Jeffries v. Wright, 51 Mo. 215; Anthony v. Bartholomew, 69 Mo. 194; 18 Encyclopedia of Pleading and Practice, p. 965. (b) And the above rule applies whether the return be made upon personal or constructive service. Stewart v. Stringer, 41 Mo. 405; Bank v. Suman, 79 Mo. 527. (c) And in cases of constructive service on a corporation through an agent, the return is conclusive upon the defendant, not only as to the time, place and manner of service, but also as to the agency. Davis v. Southeastern Line, 126 Mo. 69, 28 S.W. 965; Heath v. Railway Co., 83 Mo. 624; Newcomb v. Railroad, 182 Mo. 687, 81 S.W. 1069. (2) The return should receive a reasonable and natural interpretation. It must be fairly construed and effect be given to its plain intent and meaning, and that construction should always be adopted which shows the officer to have performed his duty. State ex rel. v. Still, 11 Mo.App. 283; Howard v. Still, 14 Mo.App. 583; 18 Encyclopedia of Pleading and Practice, p. 965 and cases cited. (3) The return made by the officer in this case is in strict conformity with the statute and constitutes valid service upon the defendant. To recite that the writ was served upon the "within named defendant, the Armour Packing Co. (now Armour & Co.)" means just what it says that the Armour Packing Co. was served, and the further recitals that the writ was served "by delivering a copy of the writ and petition to Mr. Boyd, manager of the said defendant corporation, he being in said defendant's usual business office and in charge thereof, etc.," makes it clear that it was the Armour Packing Company by its general manager that was served. The return is sufficient on its face. R. S. 1899, section 570. (4) The maxim utile per inutile non vitiatur applies to official returns; and additional words not affecting the validity of the return, and which are immaterial or unnecessary, may be stricken out. Jones v. Reefe, 3 Mo. 389; Confiscation Cases, 20 Wall. (U.S.) 110; 18 Ency. Pl. and Pr., 918.

G. B. Webster for plaintiff in error.

(1) Service upon a foreign corporation through a resident agent is constructive service. 1 Hunt Eq., ch. II sec. 1; Lush, Pr., 867; Black, Law Dic., p. 1132; Gamasche v. Smythe, 60 Mo.App. 161; Vickery v. Railroad, 93 Mo.App. 1. (2) In cases of constructive service on a corporation through an agent the return is not conclusive upon the defendant as to the agency. Wheeler v. Railroad, 24 Barb. 414; Forrest v. Railroad, 47 F. 1; Railroad v. Keep, 22 Ill. 9; Tel Co. v. Tel. Co., 28 F. 625. "If it is susceptible of two rational interpretations it is shorn of the conclusiveness which distinguishes an official return." Heath v. Railway, 83 Mo. 617; Railroad v. Ware, 74 Tex. 47.

(3) A return upon constructive service must be strictly construed, and it cannot be supported by presumptions or intendments. Charles v. Morrow, 99 Mo. 638; State ex rel. v. Staley, 76 Mo. 158; Harness v. Cravens, 126 Mo. 233, 28 S.W. 971.

(4) The facts stated in the return are insufficient to constitute valid service. To recite service upon "Armour Packing Company (now Armour & Company)" is an allegation that the writ was delivered to Armour & Company which the sheriff presumes to have been formerly Armour Packing Company. The officer cannot thus bind the defendant by his conclusion upon questions of fact and law. R. S. 1899, sec. 996; U. S. v. Tel. Co., 29 F. 17; Alderson, Jud. Writs & Proc., p. 579.

OPINION

BLAND, P. J. (after stating the facts).

Plaintiff in error makes three points; first, that the service of summons upon a resident agent of a foreign corporation is constructive service; second, that constructive service so made is not conclusive on the corporation; third, that the return of the officer is susceptible of two rational interpretations and for this reason is irregular and insufficient to confer jurisdiction on the court.

The first point is conceded by the defendant in error.

In support of its second point, plaintiff in error cites the following authorities: Wheeler v. Railroad, 24 Barb. 414; Mineral Point Railroad Co. v. Keep, 22 Ill. 9; Forrest v. Railway, 47 F. 1; American Bell Telephone Co. v. Pan Electric Telephone Co., 28 F. 625.

In the Wheeler case it was held that the defendant corporation might contest the return of the officer by showing that it had an officer upon whom service under the law should have been made, but upon whom it was not made. In the Mineral...