State v. John Gill & Sons Co.

• Citation: 220 S.W. 978
• Decision Date: 26 January 1920
• Docket Number: No. 13423.,13423.
• Court: Court of Appeal of Missouri (US)
• Parties: STATE ex rel. and to Use of WESTERN VALVE CO. v. JOHN GILL & SONS CO. et al.

220 S.W. 978

STATE ex rel. and to Use of WESTERN VALVE CO. v. JOHN GILL & SONS CO. et al.

No. 13423.

Kansas City Court of Appeals. Missouri.

January 26, 1920.

Appeal from Circuit Court, Jackson County; Wm. O. Thomas, Judge.

Action by the State of Missouri, at the relation and to the use of Western Valve Company, a corporation, against John Gill & Sons Company, and others, resulting in judgment for plaintiff, and from an order overruling their motion to set aside judgment and quash execution, defendants Fidelity & Deposit Company of Maryland, American Surety Company of New York, and the National Surety Company of New York appeal. Judgment affirmed.

A. E. L. Gardner, of Clayton, and Brewster, Kelly, Brewster & Buckholz, and New, Miller, Camack & Winger, all of Kansas City, for appellants.

William J. Bland, Davis & Woodruff, and Lyon & Lyon, all of Kansas City, for respondent.

TRIMBLE, J.

The John Gill & Sons Company, an Ohio corporation, was the general contractor for the erection of the Missouri State Capitol at Jefferson City in Cole county. The contractor was required to give a bond for the faithful performance of its contract and the payment for all material used in the erection of said capitol; and the three appellant surety companies herein were the sureties on said bond. The plaintiff, an Illinois corporation, furnished certain materials, to a subcontractor of the general contractor, which went into the construction of said building. Shortly prior to the March term, 1918, of the circuit court of Jackson county, Mo., plaintiff brought suit on said bond, making the principal and the three sureties parties defendant. Summonses were duly issued, directed to the sheriff of Cole county, who made service as to the three surety bond companies by serving same upon the superintendent of insurance of the state of Missouri. A non est return was made as to the John Gill & Sons Company. All of the foregoing process was returnable to the March term, 1918. No answer or any other pleading was filed by any of the defendants at either the March or the succeeding May term, 1918, and no service was ever obtained upon the John Gill & Sons Construction Company, nor did it enter its appearance.

The case came to trial at the May term, 1918, to wit, on the 24th of August, 1918 and no appearance being made by the defendants, the court heard evidence offered by plaintiff, and then continued the case till the 31st of August, 1918, for further evidence. On the last-named date (still the May term), the plaintiff dismissed as to the John Gill & Sons Company, and, no appearance having been made by the other defendants, plaintiff introduced further evidence, and judgment was rendered against the three sureties on the bond for the penalty thereof, and awarding execution for the amount found to be due plaintiff, to wit, $3,372.86.

A general execution was issued at the September term, to wit, on October 18, 1918, returnable to the November term of that year. During the September term, but shortly after the issuance of the above-mentioned execution, the three defendant surety companies appeared for the first time, and filed a motion to quash the execution and set aside the judgment, but afterward this motion was withdrawn. At the November term, to wit, November 12, 1918, a second motion to set aside the judgment and quash execution was filed. It is from the order overruling this motion that the three surety defendants have appealed.

The ground of appellant's objection is that the trial court, in the suit on the bond, did not acquire jurisdiction over the persons of the defendants. The three defendants, and also the plaintiff for that matter, are nonresident corporations, which fact appears on the face of the petition. The return of the sheriff discloses that service was obtained in Cole county on the superintendent of insurance; the facts stated in the petition further disclose that the cause of action accrued in Cole county, while the case is brought in Jackson county. Section 1754, R. S. 1909, which applies to both foreign and domestic corporations, provides that the suit shall be commenced "either in the county where the cause of action accrued, * * * or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business." Consequently, appellants say venue in Jackson county depends upon the...