Stegall v. American Pigment & Chemical Company
| Decision Date | 28 June 1910 |
| Citation | 130 S.W. 144,150 Mo.App. 251 |
| Parties | HARRY STEGALL, Defendant in Error, v. AMERICAN PIGMENT & CHEMICAL COMPANY, Plaintiff in Error |
| Court | Missouri Court of Appeals |
Error to St. Louis City Circuit Court.--Hon. George H. Hitchcock Judge.
AFFIRMED.
STATEMENT.--On June 27, 1908, defendant in error, plaintiff below, filed with the justice of the peace of the Fifth Judicial District of the city of St. Louis, a statement of an account for services alleged to have been rendered the American Pigment & Chemical Company, plaintiff in error, defendant below. The account or statement filed with the justice claimed $ 230 "for clerical services rendered in keeping books of said company for eleven and a half months, beginning May 1, 1907 and ending April 15, 1908, at $ 20 per month, as per contract of Harry W. Stegall with the American Pigment & Chemical Company." Summons was issued on this to the constable of the district, returnable July 13th. It was returned by the constable, endorsed by his deputy, "not found." On July 14th an alias summons was issued by the justice, running in the name of the State of Missouri, directed "to special constable A. H. Watson, city of St. Louis," and was returnable July 24th. On the back of this summons the justice of the peace endorsed and signed a notation that "at the risk and request of plaintiff, I hereby authorize A. H. Watson to execute and return this writ." From the time this alias summons was placed in the hands of this special constable until the termination of the case in the circuit court, four returns were made on it by this special constable, all of them sworn to by this special constable. The first return was sworn to on the 16th of July the second on the 4th of August; what is called the third return is the same amended by inserting the date of service and the fourth return was sworn to by the special constable on the 30th of November, 1908. For a correct understanding of the points involved here, it is necessary to set these out and they are here in numerical order as above referred to omitting the jurats:
On the return day of the summons, that is to say, July 24, 1908 defendant filed its motion to quash the return of the special constable, stating in its motion that it appeared for the purpose only of filing the motion, and challenged the first return for the reason that it simply shows that the service was obtained on defendant by serving the summons in the city of St. Louis, on the 14th of July, by delivering a true copy of the same personally to Frank J. Diekmann, president of the within named defendant, American Pigment & Chemical Company, a corporation. The second ground for the motion is that the defendant is and was at the time of service a corporation, organized under the laws of the State of Arizona, and that it was not at said time doing business in this state, nor had it a place of business, office or agency in this state. According to the transcript of the justice, when this motion to quash the return was taken up and heard by the justice on the return day thereof, that is to say July 24th, it was overruled and the transcript recites that "the evidence being submitted and concluded, the justice finds for plaintiff and against defendant, American Pigment & Chemical Company, a corporation, in the sum of $ 230," and entered judgment accordingly. This is followed by the notation in the transcript, that execution was issued to the constable of the district on July 24, 1908. On August 1st, defendant, by its agent, filed affidavit and bond for an appeal. The bond was approved and an appeal granted to the circuit court. In the affidavit for appeal, in addition to the averment that the appeal is not made for vexation or delay but because affiant believes appellant is injured by the verdict of the jury and the judgment of the justice, is the statement "and that this appeal is from the merits." Along with the transcript appears the second return of the constable, sworn to August 4, 1908, and this appears above the signature of the justice: That the foregoing is a full, true and complete transcript of the proceedings in the case named as they are of record on his docket, "and that the papers thereto attached are all the original papers belonging to said case, now on file in my office." This is dated August 1, 1908, and signed by the justice. It will be noted that the second return of the special constable was sworn to the 4th of August, 1908. There are no file marks on this as it is in the transcript or abstract, however, to show when it was filed with the justice. On the 5th of November, the case having reached the circuit court on appeal, it appears from the abstract of the record in the case that on motion of special constable, by attorney, it was ordered by the court that he be granted leave to amend his return by interlineation, by inserting the day of the month on which he served the summons of the justice, on the first line of the amended return. It was accordingly amended and as amended is what we have designated as the third return. It does not appear to have been sworn to again after being thus amended. On the 24th of November notice of appeal in usual form was duly filed in the circuit court, it having been served on the attorneys for the plaintiff on the 5th of August. On the 25th of November the cause was called for trial and the parties appeared, the defendant appearing specially and solely for the purposes of questioning the jurisdiction of the court and not for any other purpose, and renewed its motion to quash, theretofore filed before the justice of the peace. The court proceeded to try the case on this motion to quash, the defendant assuming the burthen of sustaining its motion. Introducing as a witness its secretary, Mr. Armbruster, he testified that he resided in St. Louis and is the secretary and treasurer of the defendant and held the same position at the time the case was tried before the justice; that the defendant is an Arizona corporation. Asked what he did as secretary and treasurer of the defendant company in the city of St. Louis, he testified that he would bring some bills down from the plant situated near Alton, Illinois; would bring the bills down here and make out bills and vouchers; take the bills and checks around to the vice-president for his counter-signature; mail checks here or sometimes at East St. Louis or sometimes sent them up to Alton, whichever was most convenient. Asked if the company had done any kind of work in the city of St. Louis, he said, "No," that the corporation was formed for and at the present time is engaged in manufacturing pigments and a by-product called sodium sulphide at its plant in Illinois and was so engaged at the time of the service of summons in the case; had never carried on any business in the city of St. Louis; had no office in the city of...
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