State ex rel. Merc. Corp. v. Hogan, 24106.

• Court: Missouri Court of Appeals
• Writing for the Court: Bennick
• Citation: State ex rel. Merc. Corp. v. Hogan, 103 S.W.2d 495 (Mo. App. 1937)
• Decision Date: 06 April 1937
• Docket Number: No. 24106.,24106.
• Parties: STATE OF MISSOURI AT THE RELATION OF MILLS AUTOMATIC MERCHANDISING CORPORATION, A CORPORATION, RELATOR, v. HONORABLE GRANVILLE HOGAN, JUDGE OF DIVISION NO. 1 OF THE CIRCUIT COURT, CITY OF ST. LOUIS, MISSOURI, RESPONDENT.

103 S.W.2d 495 STATE OF MISSOURI AT THE RELATION OF MILLS AUTOMATIC MERCHANDISING CORPORATION, A CORPORATION, RELATOR,
v.
HONORABLE GRANVILLE HOGAN, JUDGE OF DIVISION NO. 1 OF THE CIRCUIT COURT, CITY OF ST. LOUIS, MISSOURI, RESPONDENT. No. 24106. St. Louis Court of Appeals. Missouri. Opinion filed April 6, 1937.

[103 S.W.2d 496]

ORIGINAL PROCEEDING IN PROHIBITION PRELIMINARY WRIT QUASHED.

Reardon & Lyng and John H. Martin for respondent.

(1) The question of jurisdiction was properly raised below by motion to quash. Mertens v. McMahon, 28 S.W. (2d) 457; Harris v. McQuay, 300 S.W. 305, and cases cited. (2) The sheriff's return is fatally defective on its face for failure to incorporate all the statutory terms needed to give good service. Being so defective it cannot confer jurisdiction of the person of this defendant upon the court below. Nathan v. Planters Cotton Oil Co., 174 S.W. 126; Branch v. Weber Flour Mills Co., 238 S.W. 581; State ex rel. Mexico v. Rutledge. 56 S.W. (2d) 28. (3) Everything is inferred against the officer's return which its departure from the terms of the statute warrant. Gamasche v. Smythe, 60 Mo. App. 161; Regent Realty Co. v. Packing Co., 112 Mo. App. 271. (4) Writ of prohibition is properly available as a remedy to prevent the exercise of jurisdiction where there is a lack of such jurisdiction. State ex rel. Brewer, etc. v. Mo. W. Comp. Comm., S.S.W. (2d) 897; State ex rel. Priest v. Calhoun, 226 S.W. 329; State ex rel. Fenn v. McQuillin, 256 Mo. 693, 165 S.W. 713: State ex rel. Mexico, etc. v. Rutledge, 56 S.W. (2d) 28.

Lashly, Lashly & Miller for plaintiff-relator.

(1) The sheriff's return is sufficient on its face since it incorporates all the statutory terms necessary to give valid service, and to confer jurisdiction of the person of the defendant-relator, upon the court below. Section 728, R.S. 1929. (2) Whether or not defendant-relator was doing business in this State so as to be subject to the jurisdiction of the courts of this State is a question of fact and not of law. 50 C.J., sec. 331, p. 594; Audenreid v. East Coast Milling Co., 124 Fed. 697. (3) Defendant-relator has the burden to show that it is not engaged in business in this State and is not, therefore, subject to the jurisdiction of the courts of this State. 50 C.J., sec. 331. (4) A motion to quash return of service is not the proper method to challenge the validity of the service upon a foreign corporation. Stegall v. American Pigment & Chemical Co., 150 Mo. App. 251, 130 S.W. 144; Daniels v. Yarhola Pipe Line Company, 206 S.W. 600.

BENNICK, C.

This case, which comes to the writer on reassignment, is an original proceeding in prohibition which was instituted in this court at the relation of Mills Automatic Merchandising Corporation, one of the defendants in a cause now pending in the Circuit Court of the City of St. Louis.

The sole issue in the case is that of whether the sheriff's return to the writ of summons is sufficient on its face to show valid service upon relator, a foreign corporation, so as to have subjected it to the jurisdiction of the local court.

The manner in which a summons shall be served upon a foreign corporation is provided for by the fourth subdivision of section 728, Revised Statutes of Missouri, 1929 (Mo. St. Ann., sec. 728, p. 947), which is as follows:

"Where the defendant is a corporation ... organized under the laws of any other state or country, and having an office and doing business in this state, by delivering a copy of the writ and petition to any...