State v. Sale

• Decision Date: 17 December 1910
• Citation: 132 S.W. 1119,232 Mo. 166
• Parties: STATE ex rel. TEXAS PORTLAND CEMENT CO. v. SALE.
• Court: Missouri Supreme Court

132 S.W. 1119

232 Mo. 166

STATE ex rel. TEXAS PORTLAND CEMENT CO. v. SALE.

Supreme Court of Missouri.

December 17, 1910.

Rehearing Denied December 31, 1910.

1. PROCESS (§ 49)—SERVICE—CONFORMITY TO STATUTE.

Service of process must conform to the reasonable intendment of the statutory requirements.

2. CORPORATIONS (§ 668)—SERVICE OF PROCESS—FOREIGN CORPORATIONS—SERVICE ON CLERK—SUFFICIENCY.

Rev. St. 1909, § 3037, requires foreign corporations transacting business in the state to maintain a public office or place of business where legal service may be obtained upon it, and where proper books shall be kept, etc., and section 1760, Rev. St. 1899, § 570 (Ann. St. 1906, p. 597), requires summons to be executed on such corporation by delivering a copy of the writ and petition to any officer or agent in charge of its office or place of business, or, if it has no office or place of business, then to any officer, agent, or employé in any county where such service may be obtained. The sheriff's return in an action against a foreign corporation having an office in this state recited the execution of a summons by delivering a copy of the writ and petition to "H., clerk of said defendant, * * * he being at the time in said defendant's usual business office and in charge thereof," and that the president or other chief officers of defendant could not then be found in the city. Held that, since, under section 3037, a foreign corporation was required to maintain a public office in the state, it would be presumed that the person left there by defendant in charge of its office was such a person as the statute authorized to receive service, though he was called a "clerk," as it could not be presumed that the corporation was violating the law, so that the service upon the clerk shown by the return was sufficient.

3. PROCESS (§ 141)—SERVICE—RETURN—CONCLUSIVENESS.

The statements in a sheriff's return are conclusive as to the fact of the service.

4. WORDS AND PHRASES—"CLERK."

A "clerk" is defined as one in the employ of a merchant who attends only to a part of his business while the merchant superintends the whole thereof, differing from a factor in that the latter wholly takes the place of his principal as to the property consigned to him; the term being a general name for salesman, bookkeeper, amanuensis and other similar employé.

5. CORPORATIONS (§ 669)—SERVICE ON FOREIGN CORPORATION — RETURN — WAIVER OF DEFECTS—GENERAL APPEARANCE.

The act of a foreign corporation in appearing before the trial judge, and applying for the removal of the cause to the federal court, the application stating that defendant appeared "specially, and for the sole and single purpose of presenting this petition for removal," constituted an appearance, requiring the court to determine whether it or the federal court had jurisdiction, and hence operated as a waiver of a defect in the return of service of summons consisting in the recital of service on a "clerk," of the corporation, instead of an "officer or agent" as required by Rev. St. 1899, § 570 (Ann. St. 1906, p. 597).

In Banc.

Application for mandamus by the State, on the relation of the Texas Portland Cement Company, against Moses N. Sale. Peremptory writ issued.

Relator seeks by mandamus to compel Hon. Moses N. Sale, one of the judges of the Circuit court of the city of St. Louis to proceed with a certain cause, wherein the relator, Texas Portland Cement Company, a corporation organized and existing under the laws of West Virginia, is plaintiff, and the International Steam Pump Company, a corporation of New Jersey, and the Snow Steam Pump Works, a corporation of New York, are defendants. The action is one to recover $1,500,000 damages for breach of a certain contract in the petition fully described.

The history of the case both below and here is this: Relator filed its petition in the circuit court November 15, 1909, and had a summons issued to each of the defendants. These two instruments being placed in the hands of the sheriff of said city, he executed them in the following manner as shown by his return thereon:

"Executed this writ in the city of St. Louis, Missouri, on this 15th day of November, 1909, by delivering a copy of the writ and petition as furnished by the clerk to R. M. Hatfield, clerk of said defendant, International Steam Pump Company, he being at the time in said defendant's usual business office and in charge thereof. The president or other chief officers of said defendant could not be found in the city of St. Louis at the time of the service, said defendant, International Steam Pump Company, being a foreign corporation, having an office and doing business in the city of St. Louis and state of Missouri, at the time of service. Louis Nolte, Sheriff, by D. Kretschmer, Deputy.

"I further executed this writ in the city of St. Louis, Missouri, on this 15th day of November, 1909, by delivering a copy of the same as furnished by the clerk to R. M. Hatfield, clerk of said defendant, the Snow Steam Pump Works, he being at the time in said defendant's usual business office and in charge thereof. The president or other chief officers of said defendant could not be found in the city of St. Louis at the time of service, said defendant, the Snow Steam Pump Works, being a foreign corporation, having an office and doing business in the city of St. Louis and state of Missouri, at the time of service. Fee, $2.00. Louis Nolte, Sheriff, by D. Kretschmer, Deputy."

On December 18, 1909, each defendant appeared specially and filed a motion to quash the service. The motions are the same in language, and one will suffice. That of the Steam Pump Company reads: "The International Steam Pump Company, one of the defendants herein, appearing specially and for the sole and single purpose of presenting this motion, moves the court to quash the service of the summons on the International Steam Pump Company for the reason that it appears from the return of the sheriff on said summons that said defendant has an office in the city of St. Louis, Missouri, and that said summons was served upon a `clerk' of said defendant, and not upon an `officer or agent' thereof as required by the provisions of section 570, Revised Statutes of Missouri 1899 [Ann. St. 1906, p. 597]." These motions were sustained by the circuit court May 26, 1910, and on May 27th relator filed a motion to compel defendants to plead, answer, or demur to relator's petition. This motion the court overruled. Respondent did not refuse to permit the sheriff to amend his return. Nor did relator ask for alias process or take other steps than above indicated. June 28, 1910, an alternative writ of mandamus was issued by this court upon application of relator to which Judge Sale has made full return, and from which returns we have gathered the facts herein stated. Relator filed motion for judgment upon the pleadings, so that the case stands here upon the admissions made in return. Respondent Sale seeks the judgment of this court upon the merits, and to that end there is presented the sole question of the sufficiency of these returns. Other questions are discussed in the briefs, but were waived in the oral argument at request of respondent, who deemed the question presented upon the returns as a very important one to the circuit court of the city of St. Louis, where many such suits are pending and others being continuously brought. This outlines therefore the sole issue in the case. The chief bone of contention is the sufficiency of these words in the return: "R. M. Hatfield, clerk of said defendant * * * he being at the time in said defendant's usual business office, and in charge thereof."

Respondent contends that the service upon a "clerk" does not meet the demands of the statute; relator contra.

This sufficiently states the case.

Edward D'Arcy and Percy Werner, for relator. Nagel & Kirby, for respondent.

GRAVES, J. (after stating the facts as above).

1. It is urged that if these defendants in the suit mentioned cannot be served in the manner indicated by the return of the sheriff, then they can obviate service of process entirely. This may be true, yet it will not make this service good, unless it is good under the statute. The statute has designated the manner of service, and the service must comport with the reasonable intendment of the statute as expressed by its terms. If these corporations are doing business in Missouri by license of the state as it appears from the record, there is a method of reaching them without doing violence to the statute pertaining to service of process. A part of section 3037, Rev. St. 1909, reads: "Every corporation for pecuniary profit formed in any other state, territory or country, before it shall be authorized or permitted to transact business in this...