Rubber Tire Supply Co. v. American Utilities Co.

• Decision Date: 08 January 1926
• Docket Number: No. 3740.,3740.
• Citation: 279 S.W. 751
• Parties: RUBBER TIRE SUPPLY CO. v. AMERICAN UTILITIES CO. et al.
• Court: Missouri Court of Appeals

279 S.W. 751

RUBBER TIRE SUPPLY CO. v. AMERICAN UTILITIES CO. et al.

No. 3740.

Springfield Court of Appeals. Missouri.

January 8, 1926.

Rehearing Denied January 30, 1926.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Proceeding by the Rubber Tire Supply Company against the American Utilities Company and C. A. Tucker to secure execution against him as a shareholder in defendant corporation. Judgment for plaintiff, and defendant Tucker appeals. Affirmed.

Hamlin, Hamlin & Hamlin, of Springfield, for appellant.

Haymes & Dickey, of Springfield, for respondent.

COX, P. J.

This is a proceeding under the statute for the purpose of securing the issue of an execution against C. A. Tucker, as a shareholder in American Utilities Company, a corporation, in order to collect from the shareholder the amount of a judgment in favor of plaintiff, Rubber Tire Supply Company, a corporation, against the American Utilities Company, a corporation. The trial court found for plaintiff and ordered the execution to issue. Tucker appealed.

The plaintiff alleged that C. A. Tucker received stock in the corporation, American Utilities Company, from one of the incorporators and original stockholders, who had not paid for his stock, and that Tucker knew at the time he received the stock that it had not been paid for by the party from whom he received it. It was alleged that Mr. Tucker had become the owner of 5,000 shares of preferred stock and 75,000 shares of common stock, each of the par value of $1; that plaintiff had recovered judgment against American Utilities Company, and had been unable to collect it; and that said judgment debtor is now wholly insolvent.

The answer was a general denial and an allegation that fraud had been perpetrated on the court in procuring the judgment, in that the note sued on had been paid before the suit was brought.

At the close of the evidence, defendant asked leave to file an amended answer. This was denied and the court's action thereon is assigned as error. The contents of the proffered amended answer is not preserved in the bill of exceptions and for that reason we cannot now determine whether or not the court erred in refusing permission to file it.

The note, which was the instrument sued on when the judgment was obtained by plaintiff against the American Utilities Company, was given to Mr. Hawkins, an attorney, for services rendered in securing the incorporation of said American Utilities Company, and had been transferred to plaintiff, Rubber Tire Supply Company, by Mr. Hawkins. At the trial, issues of fact were raised as to whether or not the note which was the basis of the judgment in favor of plaintiff against the American Utilities Company was void for want of consideration and that fact known by the officers of plaintiff when it acquired the note, and whether it had been paid prior to the rendition of the judgment; also whether defendant was an innocent purchaser of the stock transferred to him, and whether he knew at the time he purchased the stock that it was not paid for either in money or in property of value equal to the face value of the stock purchased. The court, having found for plaintiff, must have found all these issues of fact against defendant.

We have carefully examined the evidence as preserved in the record, and are of the opinion that there was substantial evidence to support the finding of the court, and hence his finding binds us.

The only other contention of appellant is that the circuit court did not acquire jurisdiction of the American Utilities Company in the suit of plaintiff against it, and for that reason the judgment now sought to be enforced is void. The judgment was by default, and hence the stockholder can, in this proceeding, attack the jurisdiction of the court to render the judgment now sought to be enforced against him. The contention that the trial court was without jurisdiction to render the judgment rests on the claim that the service of summons on the defendant, American Utilities Company, was not legal. The facts pertinent to that question are as follows It is conceded that the suit was properly brought in Greene county because the cause of action accrued there. The petition in the case was filed April 20, 1922. A summons to Greene county, returnable to the September term, was issued June 26, 1922. This summons was returned on September 11, 1922. The return was as follows:

"Executed the within writ in Greene county, Mo., on the 11th day of September, 1922, making a diligent search and failing to find the within named defendant in Greene county, Mo. T. J. Harris, by A. C. Anderson, D. S."

While the above summons was in the hands of the sheriff of Greene county, to wit, on July 28, 1922, another summons was issued by the clerk of the Greene county circuit court for the same defendant directed to the sheriff of Jackson county, Mo. This summons was served on August 7, 1922, a return thereof made showing service as follows:

"Executed this writ in Jackson county, Mo., on the 7th day of August, 1922, by delivering a copy of this writ, together with a copy of the petition hereto attached to T. L. Crockett, president and chief officer of the within named defendant. Fred A. Richardson, Sheriff, by ____ Coble, D. S."

It is conceded that the office of American Utilities Company, if it ever had one, had been removed from Greene county before the suit was filed. The appellant attacks the validity of the service of summons on the defendant upon two grounds: First, that the clerk of the circuit court, having first issued a summons to Greene county, had no power to issue a summons to another county until after that summons should be returned; second, that the facts which will authorize the issue of a summons to a county other than the one in which the suit is brought must appear somewhere in the record, unless the judgment is in such form that the presumption may be indulged that the court heard evidence and found the existence of the facts which were necessary to show jurisdiction before the judgment was rendered, and then contends that in this case the presumption that the court so found cannot be allowed.

Our statute (section 1192, Stat. 1919), which provides for service of summons upon corporations, contains the following provision:

"If the corporation have no business office in the county where suit is brought, or if no person be found in charge thereof, and the president or chief officer cannot be found in such county, a summons shall be issued, directed to the sheriff of any county in this state, or any other state, where the president or chief officer of such company may reside or be found, or where any office or place of business may be kept of such company."

The manner of service of the summons issued directed to the sheriff of Jackson county is not attacked, but the return of service of that summons is conceded to be in proper form. The objection is that the clerk of the circuit court of Greene county had no power or authority to issue that summons at the time he did issue it, and for that reason the summons was void, and service of it cannot confer jurisdiction on the court to try the cause and render judgment therein.

It will be noticed that, while the statute above provides what facts will authorize a summons to be issued directed to the sheriff of some county other than the one in which the suit is brought, it does not provide by whom, nor the manner in which, those facts shall be ascertained. The law requires that summons shall be issued by the clerk of the court, and, in personal action, under the general procedure when the suit is brought in the proper county, summons may be issued in the first instance to any county in the state by the clerk. Castleman v. Castleman, 184 Mo. 432, 438, 83 S. W. 757.

In a suit of this kind against a corporation, it is the existence of the facts enumerated in the statute which authorizes a summons to be issued by the clerk to a county other than the one in which the suit is...