St. Charles Sav. Bank v. Thompson & Gray Quarry Co.

• Court: Missouri Supreme Court
• Writing for the Court: Woodson
• Citation: St. Charles Sav. Bank v. Thompson & Gray Quarry Co., 210 S.W. 868 (Mo. 1919)
• Decision Date: 28 March 1919
• Docket Number: No. 19932.,19932.
• Parties: ST. CHARLES SAV. BANK v. THOMPSON & GRAY QUARRY CO.

210 S.W. 868

ST. CHARLES SAV. BANK v. THOMPSON & GRAY QUARRY CO.

No. 19932.

Supreme Court of Missouri, Division No. 1.

March 28, 1919.

Motion for Rehearing and Motion to Transfer to Court in Banc Overruled April 7, 1919.

Appeal from Circuit Court, St. Charles County; Edgar B. Woolfolk, Judge.

Suit by St. Charles Savings Bank against Thompson & Gray Quarry Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The plaintiff brought this suit in the circuit court of St. Charles county against the defendant on two promissory notes, aggregating about $23,250 and interest, executed in that county.

The judgment was for plaintiff for the full amount sued for, and the defendant duly appealed the cause to this court.

The petition was in the usual form, alleging that the plaintiff was a banking corporation, and that the defendant was a business corporation, both organized under the laws of this state; that the former was located at St. Charles, Mo., and that the defendant borrowed the money sued for from it and executed the notes sued on to it therefor.

The writ and petition were served upon John W. Thompson in the city of St. Louis. The defendant did not answer the petition, but appeared specially, and filed a motion to quash the return of the sheriff, and to dismiss the suit because the court had no jurisdiction of the cause. The material parts of this motion are as follows:

On the return day of the writ the defendant, by a limited appearance, filed a plea to the jurisdiction and a motion to quash the service of the summons.

His pleading set up as grounds therefor the following:

First, that the suit was instituted in St. Charles county, and that the duplicate summons to the sheriff of St. Charles county to the sheriff of the city of St. Louis had been returned non est; that the alias summonses which were issued to the sheriff of the city of St. Louis, and served upon John W. Thompson in the city of St. Louis, were and are insufficient to give the circuit court of St. Charles county jurisdiction in the matter or to compel the defendant to appear and defend the case.

Second, because section 1751, R. S. 1909, requires that when a defendant is a resident of this state suits must be brought in the county in which the defendant resides, or in the county in which the plaintiff resides, or in the county in which the plaintiff resides and the defendant may be found; that the petition alleges that the plaintiff's place of business is in St. Charles county; that there is no allegation in the petition as to where the defendant's principal office or place of business is (note—The petition does allege that the defendant has no place of business or officer upon whom process could be served in St. Charles county); that the return of the sheriff of St. Charles county showed that the defendant could not be found in St. Charles county; that the return of the sheriff of the city of St. Louis showed that service was had upon John W. Thompson, describing him as president of the defendant, and at the time in the defendant's office and in charge thereof, in the city of St. Louis; that for the purposes of this motion the returns must be taken as true, and therefore the suit was improperly brought in St. Charles county, and should have been brought in the city of St. Louis.

Third, that section 1765, R. S. 1909, provides that in all actions against a corporation it shall be sufficient to issue a summons, directed as in this article"provided, and returnable in like manner, and subject to the same rules and regulations of like process in case of individuals; that section 1766, R. S. 1909, provides for service on the president or other chief officer of such company, or, in his absence, by leaving a copy thereof with any person having charge thereof, and if the corporation have no business office in the county where the suit is brought, or if no person be found in charge thereof, and the president or chief officer cannot be found in said county, the summons shall be issued directed to the sheriff of any county in this or any other state where the president or chief officer of said company may reside or be found, or where any office or place of business may be kept and the service shall be as above; that under section 1765 the summons against a corporation is made "subject to the same rules and regulations as a like process in case of individuals," and under section 1766 the service "shall be the same as above," and section 1751 provides that suits shall be begun in the county in which the defendant resides or in which the plaintiff resides and the defendant may be found, and section 1765 provides that suits against a corporation shall be "subject" to the same rules and regulations as like process in case of individuals, and as an individual residing in the city of St. Louis could not be sued by a plaintiff residing in St. Charles, and be brought in the St. Charles circuit court by a summons served upon him in the city of St. Louis, it follows that a corporation whose place of business and officers are in the city of St. Louis could not be sued in St. Charles county, and be brought into court by a summons served in the city of St. Louis; that section 1751 regulates the place for bringing suits against both individuals and corporations, and section 1765 makes suits against a corporation subject to the same rules and regulations as suits against individuals, and section 1766 does not affect the place of bringing suits. It only regulates the manner of service of writs. Therefore this suit could not be Drought in St. Charles county, but should have been brought in the city of St. Louis, where the sheriff's return shows the defendant resided.

Fourth. That the circuit court of St. Charles county had no jurisdiction over the person of the defendant.

No evidence whatever was introduced to prove the facts stated in said motion. The motion was taken up by the court and overruled, and the defendant duly excepted.

Thereupon the plaintiff introduced its evidence, the defendant introducing none, and, the cause having been submitted to the court on the pleading and evidence, the court found for the plaintiff, and rendered judgment for it for the sum of $38,437.89.

None of the evidence introduced was preserved in the bill of exceptions; it simply recites the fact that the plaintiff introduced its evidence.

In due time and in proper form the defendant filed its motion for a new trial, and assigned the two following grounds therefor:

First. Because the court erred in overruling defendant's plea to the jurisdiction of the court and motion to quash the return of the sheriff of the city of St. Louis.

Second. Because the action of the court in overruling defendant's plea to the jurisdiction, and in holding that it had jurisdiction, violates section 10, art. 2, Bill of Rights of Missouri, Constitution 1875, and also violates the Fourteenth Amendment to the Constitution of the United States, and because section 1754, R. S. 1909, is unconstitutional for the same reasons.

This motion was by the court overruled, and the defendant duly excepted, and pealed the cause to this court.

Marshall & Henderson, of St. Louis, for appellant.

Theodore C. Bruere and C....