Rodgers v. National Council Junior Order United American Mechanics of United States of America
| Decision Date | 08 April 1913 |
| Parties | JOHN RODGERS, Respondent, v. NATIONAL COUNCIL JUNIOR ORDER UNITED AMERICAN MECHANICS OF THE UNITED STATES OF AMERICA, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Leo S. Rassieur Judge.
AFFIRMED.
Judgment affirmed.
John C Robertson for appellant.
"Where a foreign corporation can be served with process had upon its agent in a county in this State, such corporation is a resident of the county within the meaning of Sec. 4060, R. S 1899 (now Sec. 7568, R. S. 1909), and must appeal from the judgment of a justice within ten days." Young v. Niles & Scott Co., 122 Mo.App. 392. The section of the statutes in regard to appeals from justices should be liberally construed. Atkinson v. Burns, 91 Mo.App. 266.
Charles Fensky and Henry E. Haas for respondent.
By taking out a license to do business in the State of Missouri and appointing the Superintendent of Insurance as its agent to receive service of process, the defendant acquired a constructive residence in each and every county in this State, so that it had only ten days within which to perfect its appeal from the justice. Meyer v. Insurance Co., 184 Mo. 481; Kennedy v. Insurance Co., 165 Pa. St. 179; Werron v. Insurance Co., 166 Pa. St. 112. A nonresident foreign corporation is entitled to twenty days within which to take an appeal from a judgment of a justice court, but when the foreign corporation is "doing business in the State," it must prosecute such appeal within ten days. Sears on Missouri Corporations, sec. 375; Young v. Niles & Scott Co., 122 Mo.App. 392; Slavers v. Railroad, 51 Mo. 308; Harding v. Railroad, 80 Mo. 659; Crutsinger v. Railroad, 82 Mo. 64; Fitsmaurice v. Turney, 214 Mo. 627. An appeal allowed after the time prescribed in the statute without the granting of a rule as provided in Sec. 7573, R. S. 1909, is abortive and of no effect. Pearson v. Carson, 69 Mo. 569; Kelm v. Hunkler, 49 Mo.App. 664; Hadley v. Bernero, 103 Mo.App. 549; Union Savings Assn. v. Keisker, 8 Mo.App. 232.
--This is a suit on a certificate of life insurance in the amount of $ 500. The case originated before a justice of the peace, where plaintiff had judgment, and defendant prosecuted an appeal therefrom to the circuit court. The circuit court dismissed the appeal from the justice on the ground that it was not prosecuted within the time prescribed by the statute--that is, ten days after judgment--against one who is a resident of the county. From this judgment of the circuit court defendant appeals here; and the question for consideration presents the inquiry as to whether defendant, a nonresident fraternal beneficiary association, qualified as such under our statutes, is a resident of the county in which it was sued and, furthermore, should such association be regarded as an insurance company defendant within the purview of our statutes conferring authority on justices of the peace in every county of the State as to them?
Under statute section 7568, Revised Statutes 1909, appeals from a justice of the peace to the circuit court must be made within ten days after the judgment of the justice is rendered, but if the party appealing is a nonresident of the county where the suit was instituted, twenty days are allowed instead of ten in which an appeal may be perfected.
Defendant is an incorporated foreign fraternal beneficiary association, but prior to the institution of this suit it had qualified as such in this State by fully complying with our statutes provided in that behalf. Among other things to that end, it had appointed the Superintendent of Insurance as its attorney, upon whom service of all lawful process in actions against it should be had. Plaintiff instituted the suit before a justice of the peace in the city of St. Louis, and a summons was duly issued by the justice, directed in accordance with the statute to the sheriff of Cole county, Missouri, in which Jefferson City, the State capital, is located, and it was there duly served on the State Superintendent of Insurance by the officer. In obedience to the command of the writ, defendant appeared before the justice of the peace and contested the action, but judgment was given against it on December 27. Thereafter, on January 10--that is, fourteen days after the judgment of the justice was given--defendant filed its affidavit and bond for appeal therefrom to the circuit court as though it were a nonresident of the city of St. Louis, which is regarded as a county under our law. As before said, the circuit court dismissed the appeal on the theory that, though defendant is a foreign institution, it should be regarded as a resident of the city of St. Louis and was therefore entitled to but ten days in which to perfect an appeal from the justice of the peace.
If it was competent to institute and maintain the suit against defendant before a justice in the city of St. Louis--that is, as if it were a resident of such city--then, of course, it would have been entitled to but ten days to prosecute an appeal therefrom, while, on the contrary, if defendant is to be regarded as a nonresident of the city, twenty days for its appeal are expressly allowed by the statute. [Sec. 7568, R. S. 1909.] The question as to the county in which a foreign insurance company, qualified under our statutes to do business in this State and by the appointment of the Superintendent of Insurance as its attorney, upon whom the service of process may be had, is to be sued has been expressly decided by the Supreme Court under the statute, which we believe should control here, as will appear by reference to Meyer v. Phoenix Ins. Co., 184 Mo. 481, 83 S.W. 479. In that case, the Supreme Court declared a foreign insurance company, which had qualified to do business in Missouri and appointed the Superintendent of Insurance as its attorney, upon whom service of process should be had in its stead, was to be regarded for the purposes of suit as a resident of each and every county and each and every township in every county in the State. There the defendant was a foreign insurance company authorized to do business in Missouri under our statutes, which are now sections 7040, 7042, et seq., Revised Statutes 1909, and the plaintiff in the case was a resident of Warren county. The suit was instituted by plaintiff in Montgomery county, and service of summons was had on the Superintendent of Insurance at Jefferson City in Cole county, as the attorney of defendant for that purpose. On these facts, the Supreme Court declared that, though the plaintiff was not a resident of the county in which the suit was instituted, and though the defendant was in fact a foreign corporation, it was nevertheless constructively a resident of Montgomery county and therefore jurisdiction obtained in the justice of the peace court over both the subject-matter and the person.
But it is said, though such be true, defendant here is a foreign fraternal beneficiary association and is therefore not amenable to the same rule of decision. Touching the matter of such foreign fraternal societies qualifying under our law for the transaction of business in this State and in respect of the appointment of the Insurance...
To continue reading
Request your trial