Weidman v. Byrne

Citation226 S.W. 280,207 Mo.App. 500
PartiesH. M. WEIDMAN, Appellant, v. H. G. BYRNE, et al., Respondents
Decision Date16 December 1920
CourtCourt of Appeal of Missouri (US)

Rehearing Denied 207 Mo.App. 500 at 507.

Appeal from the Jasper Circuit Court.--Hon. Grant Emerson, Judge.

AFFIRMED.

Judgment affirmed.

George V. Farris for appellant.

A corporation chartered by a foreign State is a foreign corporation and is liable to attachment as a nonresident debtor, even though it may have an officer and doing business in the State in which the attachment is issued. City of St. Louis v. Wiggins, 40 Mo. 580; 1st Shinn Attachment section 105; 6 Corpus Juris 51. In the case at bar the defendant cannot collaterally attack the judgment or raise the issue as to whether the grounds of attachment should be sustained for the reason that no plea in abatement was filed so that the court's action in sustaining said attachment is res judicata. Freymark v. McKenney Bread Company, 55 Mo.App. 435.

George J. Grayston and J. B. Steiner for respondents.

(1) The attachment in the justice's court being without bond, the proceedings are void. The only ground of attachment applicable to the defendant corporation was the second ground mentioned in the statute: that defendant was a corporation whose chief office was outside of the State of Missouri. R S. 1909, section 2294; Farnsworth v. Railroad Co., 29 Mo. 75, 77-78; Tamblyn v. Lead & Zinc Co., 161 Mo.App. 298. (2) A bond is required as a condition precedent to attachment in justices' courts. Sections 7638, 7639, 7654, 2298; 4 Cyc. 527; Jasper County v. Chenault, 38 Mo. 358; Stevenson v. Robins, 5 Mo. 18; Hargadine v. Van Horn, 72 Mo. 370; Burnett v. McCluey, 78 Mo. 676; Norman v. Horn, 36 Mo.App. 419; Bank v. Garton, 40 Mo.App. 113; Owens v. Johns, 59 Mo. 89. (3) The return on the summons was insufficient, in that it failed to show inability to find an office, agent or employee of the defendant corporation. R. S. 1909, sections 7640, 7641, 7423; Byrd v. Steele, 49 Mo.App. 419; McCloon v. Beattie, 46 Mo. 391. (4) The return on summons is insufficient to show attempt to serve in proper time. Section 7423 requires ten days' service. The constable cannot reset the case, but must serve ten days before the day of trial or not at all. Henman v. Westheimer, 110 Mo.App. 197. (5) The officer is required to continue the search during all of the time within which service may be made. Lumber Co. v. Deneen, 220 Mo. 184; Lumber Co. v. Jones, 220 Mo. 190; Williams v. Sands, 251 Mo. 147. (6) Constructive notice by posting notices in four public places twenty days before the day set for trial can only be resorted to "when the defendant cannot be summoned." Then only finding that the defendant could not be summoned is a deduction by the justice of the peace from the constable's return, and the return does not warrant such deduction or finding. Section 7646; Byrd v. Steele, 49 Mo.App. 419; McCloon v. Beattie, 46 Mo. 391.

BRADLEY, J. Sturgis, P. J., and Farrington, J., concur.

OPINION

BRADLEY, J.

This is a suit in conversion. Plaintiff alleges that he was the owner and entitled to the possession of an air compressor and some other personal property of the value of $ 1000, and that the defendants wrongfully converted said property to their own use to plaintiff's damage. The answer was a general denial. Whatever title plaintiff had was derived from an execution sale under certain proceedings in a justice of the peace court. The cause was submitted to the court on an agreed statement of facts, and the finding was for defendants, and plaintiff appealed.

The Mount Nebo Lead & Zinc Company and two individuals were parties defendant in the case at bar, but we will speak of defendant as applying to the company for convenience. One Edes proceeded by attachment in a justice of the peace court to recover $ 250 of and from defendant, Mount Nebo Lead & Zinc Company, an Oklahoma corporation. The grounds for attachment in the Edes suit were: That the defendant is not a resident of this State; that the defendant is a corporation whose chief office or place of business is out of this State. On the theory that no bond was required since the defendant in the attachment suit in the justice court was a nonresident, none was given. With the attachment writ issued by the justice the constable on the day of issue, to-wit, June 8, 1918, attached as the property of the Mount Nebo Lead & Zinc Company the property here alleged to have been wrongfully converted by said company. It is conceded that defendant Mount Nebo Lead & Zinc Company was the owner of the attached property before the proceedings in the attachment case in the justice court, and that said company is yet the owner unless such proceedings divested it of title. So far as appears the statement and affidavit for attachment in the Edes case in the justice court were regular. The constable made his return on the attachment writ, which contained also a summons, that he attached certain property describing it, on June 8th, which includes the alleged converted property, and then the return continues: "And further executed this writ on the 20th day of June, 1918, by making a diligent search for and failing to find the president, vice-president or other chief officer of the within named Nebo Lead & Zinc Co., a corporation, within my county." The return day in the justice court was June 20th. On that day the justice noted in his docket, "that property and effects of the defendant have been attached and that the defendant has not been and cannot be summoned and does not appear in this action, it is therefore ordered that the plaintiff give notice" to defendant by four written or printed advertisements set up in four public places in the county that a writ was issued against it and its property attached to satisfy the demands of the plaintiff, and that unless defendant appeared at the office of the justice on the next law day, July 10, 1918, judgment would be rendered and the property sold. On the next law day, July 10th, defendant did not appear, and a general judgment was rendered, but a special execution issued. Under this execution the constable on the same day levied upon and advertised the attached property for sale on July 20th. The property was sold by the constable to one Scott, and Scott sold whatever interest he had to plaintiff in the present case. It does not appear how the property got out of plaintiff's possession, but it is stated in the agreed statement "that the defendants before this suit was brought acquired possession of said property by virtue of a replevin suit against parties other than this plaintiff."

The Mount Nebo Lead & Zinc Company, defendant in the Edes attachment suit in the justice court, and defendant here, appeared in the justice court on July 26th and filed its affidavit and bond for appeal from the judgment of the justice, and it being a nonresident of the county and having twenty days to take its appeal, Section 7568, Revised Statutes 1909, the appeal was granted, and the transcript lodged with the circuit court. On granting the appeal the justice did not give the defendant the certificate provided for by Section 7572, Revised Statutes 1909, for presentation to the constable to secure release of the property. Defendant makes the excuse for its failure to request such certificate that the constable had already sold the property when it took its appeal, and such certificate and presentation would have been useless. It appears in the brief of the defendant here that it was successful in the circuit court in defeating the Edes claim. This fact, however, does not appear in the record, and is not of consequence in the determination of the cause.

The validity of the judgment and other proceedings in the justice court resulting in the sale of the attached property to plaintiff's vendor are challenged by defendant in the case at bar. If that judgment and proceedings there were insufficient to pass title to plaintiff's vendor who bought at the constable's execution sale, then plaintiff's vendor got no title, and consequently plaintiff got none. That is, if those proceedings did not divest defendant in the case at bar of title to the property alleged to have been converted by it, then plaintiff cannot recover. Defendant contends: (1) That the return of the constable is wholly insufficient to support or justify the order of the justice for constructive service; (2) that the no bond provision of Section 2298, Revised Statutes 1909, does not apply to a nonresident corporation, and since no attachment bond was given in the justice court the whole proceeding therein was a nullity and void; (3) that since defendant had twenty days in which to appeal, and did appeal within that time, that the constable had no authority to sell under the execution until defendant's time to appeal expired, and that having sold within that time such sale passed no title to the purchaser.

Section 7640, Revised Statutes 1909, prescribes the form for the writ which includes the summons...

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