State ex rel. Mueller Baking Co. v. Calvird

• Decision Date: 18 March 1936
• Docket Number: 34728
• Parties: State of Missouri at the relation of Mueller Baking Company, Nafziger Baking Company, a Corporation, and Colonial Baking Company, a Corporation, Relators, v. Charles A. Calvird, Jr., Judge of the Circuit Court of St. Clair County
• Court: Missouri Supreme Court

92 S.W.2d 184

338 Mo. 601

State of Missouri at the relation of Mueller Baking Company, Nafziger Baking Company, a Corporation, and Colonial Baking Company, a Corporation, Relators, v. Charles A. Calvird, Jr., Judge of the Circuit Court of St. Clair County

No. 34728

Supreme Court of Missouri

March 18, 1936

Preliminary rule in prohibition made absolute.

Arthur W. Allen, Julian E. Smith and Paul W. Barrett for relators.

(1) The Circuit Court of St. Clair County, did not have jurisdiction of the persons of the relators. (a) How the circuit court acquires jurisdiction. The court of first instance must have jurisdiction of both the person and the subject matter of the action. State ex rel. Davis v. Ellison, 276 Mo. 642 208 S.W. 439; Sec. 720, R. S. 1929. Jurisdiction can only be acquired over the corporate defendants, Nafziger Baking Company and Colonial Baking Company by process served upon the president or chief officer of such corporations or in their absence by leaving a copy thereof at the business office of the company with some person in charge thereof. Secs. 723, 728, 734, 735, 736, R. S. 1929. Under these statutes the court of first instance does not acquire jurisdiction of a suit unless the return of the sheriff shows that service was had as prescribed by them. Land & Min Co. v. Land & Cattle Co., 187 Mo. 420, 86 S.W. 145; Bente v. Rem. Type. Co., 116 Mo.App. 77, 91 S.W 397. Service of process upon a salesman, employee or agent who is not an officer of a corporation or not in charge of an office or a principal place of business of the corporation does not confer jurisdiction of the person of the corporate defendant. Coerver v. Crescent Lead & Zinc Corp., 315 Mo. 276, 286 S.W. 3; Bauch v. Webber Flour Mills, 210 Mo.App. 666, 238 S.W. 581. (2) Section 8707, Revised Statutes 1929, is not a service statute. Any action under Section 8707, Revised Statutes 1929, is an action at law for damages for violation of the act or for the treble damages therein specified. Albers Com. Co. v. Spencer, 205 Mo. 105, 103 S.W. 523. Section 8707 does not prescribe or provide for any method of service of summons and therefore personal service is requisite before the court obtains jurisdiction. Williams & Pierson v. Dittenhofer, 188 Mo. 134, 86 S.W. 242; Doyle v. Railroad Co., 113 Mo. 280, 20 S.W. 970; Ryan v. Kelly, 9 Mo.App. 396; Bank v. Berry, 79 Mo.App. 472; Ann. Cas. 1915A, 220; 21 R. C. L., sec. 10, p. 1269; Roberts v. Stone, 99 Mo.App. 425.

Lee E. Crook and John M. Belisle for respondent.

(1) Section 8707 is service statute as points out the person upon whom service may be had, therefore personal service need not be had. Williams & Pierson v. Dittenhofer, 188 Mo. 134; Doyle v. Railroad Co., 113 Mo. 280. (As realtors authorities so hold.) (2) Section 8707 Mo. Anti-Trust statutes is constitutional. State ex inf. v. Aetna Ins. Co., 150 Mo. 113; State v. Fireman's Ins. Co., 152 Mo. 1; State ex inf. v. Standard Oil Co., 218 Mo. 1; First Natl. Bank of Jennette v. Mo. Glass Co., 243 Mo. 409; State ex rel. v. Assur. Co. of America, 251 Mo. 278; State ex inf. v. Armour Packing Co., 265 Mo. 121.

OPINION

Collet, J.

This is an original proceeding by prohibition whereby it is sought to prohibit respondent, as judge of the Circuit Court of St. Clair County from taking further action in a certain cause wherein Pricer's Cash Market is plaintiff and relator herein are defendants. The facts necessary to an understanding of the points involved are substantially as follows:

Pricer's Cash Market is a general grocery store located in Osceola, St. Clair County, Missouri. Prior to an undisclosed date in May, 1935, it was handling bread and pastry products manufactured and sold by relators. The relator, Nafziger Baking Company is a Missouri corporation maintaining its principal place of business and office for the transaction of its usual and customary business in the city of Springfield, Greene County, Missouri. The relator, Colonial Baking Company is a Delaware corporation authorized to transact business in the State of Missouri and maintains an office for the transaction of its usual and customary business in the city of Springfield, Greene County, Missouri. The relator, Mueller Baking Company, is alleged in the application for the writ to be a copartnership composed of Joseph A. Mueller and Alma A. Mueller. The return "admits" that it is a corporation. It is immaterial to which category it is assigned. It operates a baking plant also located in the city of Springfield, Greene County, Missouri. Joseph A. Mueller and Alma A. Mueller are residents of Springfield, and maintain no residence in St. Clair County. Neither of the relators have any office or place of business in St. Clair County. The petition, filed in the Circuit Court of St. Clair County, alleges that in May, 1935, relators entered into an agreement and combination to regulate, control and fix the retail price of bread in the city of Osceola and agreed to control and regulate the persons or parties to whom their bread would be sold in that city; that this agreement was put into effect with the result that the relators refused to sell any of their bread to the plaintiff because plaintiff would not agree to charge the retail price fixed by relators which was a higher price than that previously charged for the same product by plaintiff. As a result of this alleged action on the part of relators it is charged that plaintiff was forced to abandon the sale of such products to its damage in the sum of $ 5000. The petition was based upon Article 1, Chapter 47, Revised Statutes 1929, and under the provisions thereof prayed treble damages. Summons was issued from the Circuit Court of St. Clair County, directed to the sheriff of St. Clair County and was served by that officer by delivering a true copy of the summons and a true copy of the petition thereto attached to the drivers of relators' bread trucks in St. Clair County. On the return date of the summons relators filed separate motions to quash the sheriff's return. These motions were overruled and on the same day, without further proceedings in the circuit court, relators applied to this court for its writ prohibiting further proceedings in the cause. Our preliminary rule was issued to which the respondent duly made return, admitting the material facts above related and asserting the service was had pursuant to Section 8707, Revised Statutes 1929. Thereupon relators moved for judgment on the pleadings, which leaves the cause to be determined upon the law as applied to the facts stated.

Relators advance three grounds in support of their contention that the trial court is without jurisdiction to proceed with the hearing of the cause pending before it. First, that Section 8707, Revised Statutes 1929, is a venue statute, local and special in character and hence in conflict with subdivision 4 of Section 53, Article IV of the Constitution; second, that the substance of Section 8707 is not expressed in the title of the act of which that section is a part and is therefore invalid under the provisions of Section 28, Article IV of the Constitution; third, that even if Section 8707, be a service statute and constitutional, no method of service is prescribed thereby and therefore the service attempted under the authority assumed to be conferred by Section 8707 is void.

Respondent rests his case upon the ground that Section 8707 is a service statute and is valid. He concedes that the service on relators was based upon the provisions of Section 8707 and no other. We will consider those questions in the order stated.

Section 8707, above referred to, is as follows:

"Any person injured in his business or property by any other person or persons by reason of anything forbidden or declared to be unlawful by this article may sue therefor in any circuit court of this state in which the defendant or defendants, or any of them, reside, or have any officer, agent or representative, or in which any such defendant or any agent, officer or representative may be found, without regard to the amount in controversy, and shall recover threefold the damages by him sustained, and the costs of the suit, including a reasonable attorney's fee."

To give the statute the meaning evidently intended we construe it to mean that any person "may sue therefor in the circuit court of any county of this state in which the defendant or defendants reside. . . ."

I. There is no logical ground upon which this section can be held to be a service statute. It neither determines the manner nor the place of the service or the parties upon whom service may be obtained. The purport of the section is to undertake to fix the place where actions for the violation of the article of which this section is a part may be brought. It is clearly a venue statute. Relators appear to assume that if the above section is to be classified as a venue statute it necessarily follows that it violates the inhibition contained in the above noted provision of the Constitution. That constitutional provision is:

"The General Assembly shall not pass any local or special law: . . . Changing the venue in civil or criminal cases. . . ." [Subdivision 4, Sec. 53, Art. IV.]

State ex rel. v. Gantt, 274 Mo. 490, 203 S.W. 964, is cited in support of the theory that Section 8707, being a venue statute and not being universal in its application, is invalid. In that case Faris, J., speaking for this court en banc, said, l. c. 508:

"It is also clear that all special venue statutes are forbidden by our Constitution. [Sub. 4, Sec. 53, Art. 4, Constitution.] By reason of the language used in said Section 53 of the Constitution we are not allowed to apply the permissible classification doctrine of Subdivision 32 of said Section 53...