Thomasson v. Mercantile Town Mutual Insurance Company

• Decision Date: 09 March 1909
• Citation: 116 S.W. 1092,217 Mo. 485
• Parties: J. W. THOMASSON v. MERCANTILE TOWN MUTUAL INSURANCE COMPANY, Appellant
• Court: Missouri Supreme Court

116 S.W. 1092

217 Mo. 485

J. W. THOMASSON v. MERCANTILE TOWN MUTUAL INSURANCE COMPANY, Appellant

Supreme Court of Missouri, Second Division

March 9, 1909

Transferred from St. Louis Court of Appeals.

Affirmed.

N. T Gentry, amicus curiae.

(1) Appellant insists that the trial court did not have jurisdiction over the person of defendant, because of the defect in the sheriff's return. Counsel for respondent insist, however, that the "principal office" contemplated by Sec. 8092, R. S. 1899, is the same as the "usual office," which the sheriff certifies was the place where he served the summons on J. W. Daugherty secretary of defendant corporation. If defendant had its principal office at a certain place, surely then that place was its usual office. In other words, principal and usual are synonymous when they refer to one's business office. Defendant's principal business office was its usual business office, and vice versa. Thomasson v. Ins. Co., 89 S.W. (Mo. App.) 564; Taussig v. Railroad, 186 Mo. 180. Appellant's contention that a summons cannot be served by any one except the sheriff himself can hardly be taken seriously. Many conditions may arise, the sickness or absence of the sheriff, or the press of business, and it will be important, yea, absolutely necessary, for one of his deputies to serve such a paper. It is no stretch of imagination to consider that such a condition of affairs may exist, especially in a city like St. Louis. Hence, our statute was enacted, which provides for such a contingency. When the deputy sheriff served this summons, he was then acting as sheriff; indeed, he was the acting sheriff, and possessed the same powers. R. S. 1899, sec. 10043. (2) But whether the sheriff's return to the summons was sufficient or not, defendant appeared on the first day of the term and filed an "answer." The first count of this answer was a plea to the jurisdiction, and the second count was a general denial. As was intimated by the learned trial judge in this case, "the defendant voluntarily put itself in court when it came in and pleaded to the merits of the cause." Defendant did not file a motion to quash the sheriff's return; but filed a paper, which it termed an "answer," and by this answer it denied all of the allegations contained in the petition. If defendant desired simply to raise a jurisdictional question, then its appearance and its motion should have been for that purpose, and that purpose only. A motion to quash the sheriff's return is one thing, while an answer is another and a different pleading. "The appearance, to be special, must be on jurisdictional grounds. If upon any other ground, it is a general appearance and gives the court jurisdiction." Works on Jurisdiction, secs. 13, 22 and 34; 34 Cyc. 511; Roy v. Merc. Co., 26 P. 996; Sheehan v. Simms, 36 Mo.App. 230; Speer v. Burlingame, 61 Mo.App. 83; Belden v. Wilkinson, 60 N.Y.S. 1083; Bailies on Code Pl., pp. 313, 314; Railroad v. Railroad, 63 N.Y. 181; Handy v. Ins. Co., 37 Ohio St. 366; Rowland v. Coyne, 55 Cal. 1; Printing Co. v. Budd, 2 Wash. 339; Gilbert v. Hall, 115 Ind. 551; Stevens v. Harris, 99 Mich. 233; Kronski v. Railroad, 77 Mo. 368; Delinger v. Giggins, 26 Mo. 183; Tower v. Moore, 52 Mo. 120; Newcomb v. Railroad, 182 Mo. 707.

GANTT, P. J. Burgess and Fox, JJ., concur.

OPINION

GANTT, P. J.

This appeal has been certified to this court by the St. Louis Court of Appeals on account of a dissent of one of the judges of that court, in which he holds that the opinion of the majority of that court is in conflict with a decision of this court.

The action was begun in the circuit court of Dunklin county, April, 1903. The petition omitting the caption is as follows:

"Plaintiff for his cause of action states that defendant is, and was, at all times hereinafter mentioned, a corporation duly organized and existing under the laws of the State of Missouri, doing a fire insurance business, with right to sue and be sued as such corporation. Plaintiff further states that on the first day of March, 1901, defendant made its policy of insurance of that date, whereby in consideration of the payment by plaintiff to defendant of the premium of forty dollars, defendant insured plaintiff against loss or damage by fire to the amount of three hundred dollars upon his barn, situated upon south half of southeast quarter of section 18, township 20 north, range 10 east, in Dunklin county, Missouri, and to the amount of four hundred dollars upon the hay and grain therein, and to the amount of one hundred dollars upon the farm utensils therein, from noon of the first day of March, 1901, to noon of the first day of March, 1904. Said policy is herewith filed and marked 'Exhibit A.'

"Plaintiff further states that at the time of the issuing of said policy, and at all times from said date to the occurrence of the fire hereinafter mentioned, plaintiff had an interest in all the property insured, as owner thereof, to an amount in each case exceeding the amount of the insurance on the barn, hay and grain, and farm utensils respectively; and that on the 15th day of November, 1902, and while said policy was in force, said barn, hay and grain, and farming utensils, were totally destroyed by fire; that plaintiff duly performed all of the conditions required of him by the terms of said policy, and in due time after the fire, and more than ninety days before the commencement of this action, to-wit, on or about the -- day of November, 1902, gave to the defendant due notice and proof of the fire and loss aforesaid, and demanded payment of the sum insured. But defendant has ever failed and refused, and still fails and refuses, to pay. Wherefore, plaintiff prays judgment for said sum of eight hundred dollars, with interest thereon from the -- day of November, 1902."

On this petition a writ of summons issued to the sheriff of the city of St. Louis and was returnable to the first Monday in May, 1903. Upon that summons the following return was made: "Executed this writ in the city of St. Louis, Missouri, on the within named defendant, the Mercantile Town Mutual Insurance Company (a corporation), this 13th day of April, 1903, by delivering a copy of the writ and petition as furnished by the clerk to J. W. Daugherty, secretary of the defendant corporation, he being in said defendant's usual business office and in charge thereof. The president or other chief officer of said defendant could not be found in the city of St. Louis at the time of service. Joseph F. Dickmann, Sheriff; By Wm. Cahill, Deputy."

At the return term of the writ the defendant filed the following answer:

"Defendant, appearing specially, by its attorneys, for the purpose of this answer and for no other purpose, avers that this court has no jurisdiction over the person of the defendant in this cause. Wherefore defendant prays that this action be abated and for its costs.

"2. Without waiving the aforesaid plea in abatement, defendant, appearing specially as aforesaid, for answer to the plaintiff's petition denies, generally, each and every allegation thereof."

The circuit court first heard the plea in abatement and found for the plaintiff and thereupon the defendant withdrew from further appearance in the cause. The court then proceeded to try the cause upon the petition and the second paragraph in the answer and rendered judgment for the plaintiff for the sum of $ 654 and costs.

At the same term the defendant filed its motion for new trial, which was heard and overruled and also a motion in arrest, which was overruled. Thereupon the cause was appealed to the St. Louis Court of Appeals. At the October term, 1905, the judgment of the circuit court was affirmed in the opinion by Judge Nortoni, in which Judge Goode concurred, and Judge Bland dissented on the ground that the majority opinion was in conflict with the opinion of this court in Meyer v. Insurance Co., 184 Mo. 481, 83 S.W. 479. The bill of exceptions preserved none of the evidence. The jurisdiction of the circuit court is challenged both as to the jurisdiction over the person of the defendant by virtue of the service of the summons and as to the subject-matter on account of the alleged fatal defect in the petition.

I. It is insisted by the learned counsel for the defendant that the return on the summons was insufficient to give the court jurisdiction. The statute governing suits against Town Mutual Insurance Companies in section 8092, Revised Statutes 1899 provides that "suits may be instituted in the circuit court of any county in this State where the cause of action originated against any company operating under the provisions of this article or where such company has its principal office, and whenever any suit shall be so instituted against any such company, a certified copy of the original petition and summons shall be served on the president or secretary, or other chief officer in charge of the principal office of such company, by the acting sheriff of the county in which such company may have its principal office. If such company have its principal office in the city of St. Louis, then the acting sheriff of the city of St. Louis shall serve the process herein mentioned. And service when so made and proven by the return thereof, shall be deemed service on any company proceeded against." As already noted the cause of action in this case originated in Dunklin county. Service was had in the city of St. Louis presumedly because the principal office of the defendant was in that city. This fact, however, is not shown in the return, and it is perfectly plain, we think, as held by the Court of Appeals, that the return on the writ did not comply with the statute; it merely shows a service on the secretary in charge of "the usual business office,"...