Texas-Western Co. v. Giesecke, TEXAS-WESTERN

• Decision Date: 17 January 1961
• Docket Number: TEXAS-WESTERN,No. 30516,30516
• Citation: 342 S.W.2d 266
• Parties: COMPANY, a Corporation (Plaintiff), Appellant, v. John W. GIESECKE (Defendant), Respondent.
• Court: Missouri Court of Appeals

Page 266

342 S.W.2d 266

TEXAS-WESTERN COMPANY, a Corporation (Plaintiff), Appellant, v. John W. GIESECKE (Defendant), Respondent.

No. 30516.

St. Louis Court of Appeals, Missouri.

Jan. 17, 1961.

William L. Mason, Jr., St. Louis, for plaintiff-appellant.

John W. Giesecke, St. Louis, Erwin F. Vetter, Clayton, for defendant-respondent.

O. P. OWEN, Special Judge.

This is an appeal from an order of the Circuit Court of St. Louis County dismissing plaintiff's petition. On July 16, 1956, plaintiff filed its petition alleging that defendant was indebted to it on an account for $176.80, pleading an express contract whereby it was entitled to a reasonable attorney's fee if the account was placed in the hands of an attorney for collection, alleging it had been so placed and praying for judgment for $176.80, interest, costs and a reasonable attorney's fee. On July 17, 1956, summons was issued and delivered to the sheriff of St. Louis County. On July 19, 1956, the sheriff made his return of service of summons and a copy of the petition on the defendant, as follows:

'I hereby certify that I have served the within summons in the County of St. Louis, State of Missouri, by leaving on the 18th day of July 1956, a copy of the summons and a copy of the Petition as furnished by the Clerk for John W. Giesecke defendant herein at the respective dwelling place or usual place of abode of said defendant with some person of his or her family over the age of 15 years.'

No further action was taken until December 30, 1957, when the sheriff and his deputy who made the return of service, filed a motion to amend return of service, setting forth that at the time of service of summons the deputy left it with a person over the age of 15 years at 32 Algonquin Wood, Glendale, St. Louis County, and was of the belief that such person was a member of defendant's household within the requirements of the laws of Missouri; that movants have since been informed and verily believe that at the time of service neither defendant nor any member of his family, any servant or employee or agent were living at said address, but said defendant and his family were in fact living outside the State of Missouri and said residence was rented and occupied by persons in no way related to defendant. Attached to this motion is the affidavit of Louis P. DesJardins, Jr., executed in New York City, New York, attesting that he had rented the premises at 32 Algonquin Wood, in Glendale, by written lease, from June 6, 1956 to September 4, 1956, and with his family, occupied the premises between those dates and that neither defendant nor any member of defendant's family lived at said premises during said time, and that a summons directed to John W. Giesecke was left with affiant's daughter Elynor Ann DesJardins sometime in July, 1956, and that neither affiant nor any member of his family is related in any way to John W. Giesecke or any member of his family.

Plaintiff, on December 31, 1957, filed its motion to dismiss the sheriff's motion to amend return of service. On April 15, 1958, after a hearing, the court overruled plaintiff's motion to dismiss and sustained the sheriff's motion to amend the return. However, no entry was made on the record by way of amending the return until December 14, 1959, when the return of service of summons was amended so as to read:

'After due and diligent search, the within named defendant, John W. Giesecke, cannot be found in the County of St. Louis, Missouri.'

On the very day after the long delayed amendment the court entered this order:

'There being no service of process on John W. Giesecke, the defendant herein, ordered by the Court of its own motion that this cause be and is hereby dismissed, and that the plaintiff pay the costs herein incurred.'

From this order and judgment of dismissal, plaintiff prosecutes its appeal. The defendant respondent has filed no brief in this court.

Plaintiff appellant takes the position that the original return reciting service on a person of defendant's family over the age of 15 years is conclusive on the parties and its truth can be controverted only in a direct action against the sheriff for false return; that it was error to admit any evidence or take any testimony in support of the sheriff's motion to amend the return where plaintiff objected thereto, that the court erred in overruling plaintiff's motion to strike the motion to amend the return and in sustaining the motion to amend, and in dismissing plaintiff's cause and rendering judgment for costs against plaintiff on the sole ground that there was no service on the defendant.

In support of its contentions, appellant cites Majewski v. Bender et al., 241 Mo.App. 701, 237 S.W.2d 235, and Anthony v. Downs Amusement Co., 239 Mo.App. 1136, 205 S.W.2d 925.

In the Anthony case the return showed service on the corporate defendant by delivering a copy of the writ and petition to an individual in defendant's usual business office and in charge thereof. No pleading having been filed by defendant within the allotted time, default and inquiry were granted on plaintiff's request. After hearing judgment was entered in plaintiff's favor. Several months later defendant filed its petition to review and vacate and set aside judgment and to recall the execution, alleging among other things that it had not been served with process and summons, that the individual on whom service was made was not in charge of defendant's office nor authorized to receive process and that the sheriff knew all these facts at the time of delivery of the writ and that the return of the sheriff was illegal and void. Plaintiff filed a motion to dismiss defendant's petition to review and set aside the judgment on the ground, among others, that it improperly and erroneously attempts to collaterally attack the sheriff's return of service and attempts to plead a purported irregularity not patent of record but which depends upon proof dehors the record. This motion of plaintiff to dismiss was sustained by the court and from that order the defendant appealed. In affirming the action of the trial court, this court in that case held, 205 S.W.2d loc. cit. 928-930:

'The question to be determined in the case at bar is whether or not the above mentioned doctrine of law, heretofore declared and applied by the courts of this state, has been superseded because of the enactment by the Legislature of the new Civil Code of Missouri, particularly Sections 31 and 61(5), supra, relied on by defendant herein.

'It will be noted that the language of Section 31, cited by defendant, provides that the court 'may allow' any process, return, or proof of service thereof to be amended.

'There is nothing in the record in the case at bar to show that the sheriff requested leave to be 'allowed' to amend his return, even though defendant has charged on the record that the sheriff's return 'was and is false.' We must, therefore, take it that the sheriff has stood and still stands on his return as made and filed in the cause. Neither the sheriff nor the plaintiff is seeking to amend the sheriff's return. On the contrary, it is the defendant who is seeking--not to have an 'amendment' to the return 'allowed' because of any 'insufficiency,' but to have the judgment based on said return set aside by the admission of evidence to contradict the return and nullify it on the ground that it is false.

'We do not believe that the language used by the Legislature in Sections 31 and 61(5), supra, warrants or is open to the construction contended for by defendant. Defendant's contention is not based upon any 'insufficiency' of the sheriff's return. It is clearly based upon the 'falsity' of such return. Defendant does not seek to 'amend' the return. It seeks, ultimately, to have the return completely nullified. The record shows that the return of the sheriff is regular on its face and contains all the elements required for a 'sufficient' return of service under Section 27(c), Civil Code of Missouri, Laws Mo.1943, p. 366, Mo.R.S.A. Sec. 847.27(c).

'We are unable to agree with defendant that 'falsity' of a sheriff's return is the same as an 'insufficiency' thereof. The simple clear language of the Legislature in providing for the allowance of amendments to a sheriff's return of service, for the purpose of curing insufficiencies or defects therein to avoid delays in procedure, cannot, as we view the matter, reasonably be construed to authorize the setting aside of a final judgment and the complete nullification of the sheriff's return on the ground of the falsity of such return.

'It is true that the scope of Section 31 of the new Civil Code, supra, is broader than was that of the old section, namely, Section 984, R.S.Mo.1939, Mo.R.S.A. Sec. 984, which provided that all returns made by any sheriff or other officer 'may be amended in matters of form by the court to which such return shall be made, in its discretion, as well before as after judgment.' (Emphasis ours.)

'We have emphasized above that part of the old law (now repealed) which limited amendments of an officer's return to 'matters of form.' Under Section 31 of the new Civil Code, supra, such amendments are not so limited. However, we find no basis whatsoever in the language used by the Legislature in either Section 31 or 61(5) of the new Civil Code, supra, to warrant a court in holding that it has authority to declare a sheriff's return of service void in its entirety because of falsity. The law provides an entirely different and, as we view it, a more drastic and effective method of dealing with a false return of a sheriff, namely, a suit directly against such officer on his official bond.

'We think that a reasonable construction of the language of Section 31 of the new Civil Code, supra, leads inescapably to the view that it was the legislative intent to authorize the court to 'allow' an amendment to a sheriff's return on the motion of the sheriff, or of a party, so as to...