State ex rel. Plaster v. Pinnell, 17446

• Decision Date: 01 June 1992
• Docket Number: No. 17446,17446
• Citation: 831 S.W.2d 949
• Parties: The STATE of Missouri ex rel. Robert W. PLASTER, Relator, v. The Honorable William H. PINNELL, Respondent.
• Court: Missouri Court of Appeals

Page 949

831 S.W.2d 949

The STATE of Missouri ex rel. Robert W. PLASTER, Relator, v. The Honorable William H. PINNELL, Respondent.

No. 17446.

Missouri Court of Appeals,

Southern District,

Division Two.

June 1, 1992.

William M. Modrcin, James R. Hess, Hillix, Brewer, Hoffhaus, Whittaker & Wright, Kansas City, for relator.

John R. Lewis, Springfield, for respondent.

FLANIGAN, Chief Judge.

On December 20, 1991, this court issued an opinion in this cause. On February 27, 1992, by order of the Supreme Court of Missouri, this cause was transferred to that court. On May 22, 1992, the Supreme Court entered an order retransferring the cause to this court. The original opinion of this court, which follows, is now readopted and reissued.

This is a prohibition proceeding, Rule 97, ¹ in which relator is Robert W. Plaster and respondent is the Honorable William H. Pinnell, Judge of the Circuit Court of Stone County. In the underlying action, pending before respondent, plaintiff is Meco Systems, Inc., and Plaster is one of two defendants. Plaster challenges the correctness of the trial court's ruling that proper service by mail, under Rule 54.16, was obtained on him in the underlying action.

Plaster, according to an affidavit filed by counsel for plaintiff in the underlying action, resides at Route 1, Highway 5, Lebanon, Missouri, and his business address is "C/o Empire Gas Corporation, Highway 5, Lebanon, Missouri." The sheriff of Laclede County, in which Plaster resides, made two unsuccessful attempts to serve process upon Plaster at his residence. Those attempts are shown by "non-est" returns filed in the underlying action.

Thereafter, pursuant to an affidavit filed by John R. Lewis, attorney for Meco Systems, Inc., service on Plaster by certified mail was attempted. A "Summons for Service by Registered or Certified Mail," in content equivalent to Form No. 4 appearing at page 380 of Missouri Rules of Court (1991), together with a copy of the petition, was mailed by certified mail on October 30, 1990, by Deputy Clerk Linda DeForrest to Plaster at each address set forth in Lewis's affidavit. Each was accompanied by a return receipt to be signed by the addressee only. The result of that attempt is set forth in an affidavit of Cathy Shortt, Circuit Clerk of Stone County, which is undated but which was filed in the underlying action on November 6, 1990.

The body of that affidavit reads: "I CATHY SHORTT, duly elected Circuit Clerk and Ex-Officio Recorder of Deeds in and for the County of Stone, State of Missouri, do hereby state that Linda C. DeForrest, one of my deputy clerks, did, on November 2, 1990, receive from the United States Postal Service, Galena, Missouri branch, the return of two (2) Summonses for Service by Certified Mail in the case of Meco Systems, Inc. v. Robert W. Plaster, et al., case number CV590-250CC, said summonses being attached to copies of the petition and mailed by Linda C. DeForrest on October 30, 1990 to Mr. Robert W. Plaster at the following addresses:

1) c/o Empire Gas Corporation

Highway 5

Lebanon, MO 65536

and

2) Route 1, Highway 5

Lebanon, MO 65536

and said summonses were returned by said Post Office unopened and marked 'Refused.'

Further Affiant saith naught."

Plaster filed a motion which challenged the sufficiency of the service of process by mail. Respondent overruled the motion "for the reason that service has been obtained pursuant to Rule 54.16 and proven by the filing of an affidavit of the Clerk of this Court pursuant to Rule 54.20(f) and 54.20(d)." This proceeding ensued.

Rule 54.16 reads:

A party requesting service by registered or certified mail shall file an affidavit made by him, or by someone on his behalf, stating:

(1) Why personal service cannot be had in this state on the party to be served by mail, and

(2) The name and address of the party to be served by mail. The clerk shall thereupon mail to the party to be served a summons and copy of the pleading by registered or certified mail, requesting a return receipt signed by addressee only.

Rule 54.20(d) reads:

Service by mail shall be proved by the certificate of the clerk that he has mailed a copy of the summons and petition and by the filing of the return registered or certified receipt.

Rule 54.20(f) reads:

When the person to be served or an agent authorized by him to accept service of process, either within or outside the state, shall refuse to receive copies thereof, the offer of the server to deliver copies thereof, and such refusal, when these facts are shown on the server's return, shall be service.

Plaster contends that the attempted service by mail was invalid because: (1) there was no compliance with that portion of Rule 54.20(d) requiring "the filing of the return registered or certified receipt"; and (2) Rule 54.20(f) does not apply to service by mail, and even if it does, there is no affidavit signed and filed by the mailman showing a refusal by Plaster or an agent authorized by him to accept service of process to receive copies thereof, and the affidavit of the circuit clerk is insufficient.

Respondent, who is represented by counsel for Meco Systems, Inc., plaintiff in the underlying action, contends that service by mail was obtained pursuant to Rule 54.16 and that the affidavit of the circuit clerk was proof of service and satisfied Rule 54.20(d) and 54.20(f) "in that service of process was directed 'to addressee only.' Plaster 'refused' service, and evidence of 'refusal of service' is sufficient to establish service of process."

"Generally, when there is no jurisdiction over the person of the defendant, prohibition will lie to prevent further action." State v. Weinstein, 365 Mo. 1179, 295 S.W.2d 62, 67 (1956). When the requirements for manner of service are not met, a court lacks power to adjudicate. State ex rel. Minihan v. Aronson, 350 Mo. 309, 165 S.W.2d 404, 407[3, 4] (1942); Moore v. Christian Fidelity Life Ins. Co., 687 S.W.2d 210, 213 (Mo.App.1984). Actual notice is not sufficient. Harris v. Bates, 364 Mo. 1023, 270 S.W.2d 763, 769 (1954); Burchett v. Burchett, 572 S.W.2d 494, 497 (Mo.App.1978). The proper procedure, for a defendant challenging service of process, is a motion to quash service, not a motion to dismiss. State ex rel. Newport v. Wiesman, 627 S.W.2d 874, 876 (Mo. banc 1982); Moore v. Christian Fidelity Life Ins. Co., supra, 687 S.W.2d at 211, n. 1; State ex rel. Caine v. Richardson, 600 S.W.2d 82, 83 (Mo.App.1980).

Rule 54.18 reads: "Where a statute contains provisions for a method of service, service may be made pursuant to the provisions of the statute or as provided by these Rules." The answer of respondent pleads that service on Plaster was obtained pursuant to Rule 54.16 and was proved pursuant to Rules 54.20(f) and 54.20(d). Respondent makes no claim that service was obtained under any statute containing provisions for service by mail.

Rule 54.20(d), set out supra, provides that service by mail shall be proved by the clerk's certificate that he has mailed a copy of the summons and petition and by the filing of the returned registered or certified receipt. Rule 54.20(d) makes no mention of the receipt being signed, nor does it mention a refusal to sign.

In Parker v. Bond, 330 S.W.2d 121 (Mo. banc 1959), the court dealt with the sufficiency of service of process under §§ 506.200-506.320, the so-called "long arm" statute, for use in actions against nonresident motorists. Section 506.240.2 required the secretary of state to mail the suit papers to the defendant "by restricted, registered mail." Section 506.200.2 defined "restricted, registered mail," to mean "mail which carries on the face thereof in a conspicuous place, where it will not be obliterated, the endorsement, 'deliver to addressee only,' and which also requires a return receipt or a statement by the postal authorities that the addressee refused to receive and receipt for such mail." The court mentioned other statutes, providing for service by mail in suits against nonresident watercraft owners, motor carriers and actions in rem, which did not mention refusal to receipt for such mail.

The court said, at 330 S.W.2d 125:

In all of these situations (suits against nonresident watercraft owners and motor carriers and actions in rem) the Legislature has required the return receipt signed by the defendant to be filed as proof of service. As to nonresident motorists, the Legislature has gone one step farther and provided for a type of registered mail service by which the postal authorities, in case the defendant refuses to sign the return receipt, will make a statement thereon "that the addressee refused to receive and receipt for such mail." This does provide a reasonable method of notification of the...