Weil v. Greene Cnty.

• Decision Date: 31 October 1878
• Citation: 69 Mo. 281
• Parties: WEIL v. GREENE COUNTY, Appellant.
• Court: Missouri Supreme Court

69 Mo. 281

WEIL

v.GREENE COUNTY, Appellant.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Greene Circuit Court.--HON. W. F. GEIGER, Judge.

Action commenced in the Greene county circuit court on ninety interest coupons for $40 each, on bonds issued by R. P. Matthews and Ralph Walker, judges of said Greene county court, to the Hannibal & St. Joseph Railroad Company, to aid in building a railroad through Greene county. The original petition was filed October 15th, 1875, and a writ of summons issued in the usual form and returned as follows:

Executed the within writ in Greene county by delivering a copy of this writ to James D. Van Bibber, county clerk of Greene county, Missouri, and clerk of the county court of said county.

Done this the 16th day of October, 1875.

C. B. OWEN, Sheriff.

Serving writ $1.00.

The amended petition, filed November 3rd, 1875, contained ninety counts, each of which was in the following form, except as the number of the bond and coupon, and time when the same became due, viz.:

“And for cause of action the plaintiff states that heretofore, to-wit, on the 1st day of August, A. D. 1871, the defendant, by its certain writing obligatory, called bond No. 309, sealed with its corporate seal and signed by R. P. Matthews and Ralph Walker, the then justices of the county court of said Greene county, and attested by A. Demuth, the then clerk of said county court, and dated the year and day aforesaid, and now here shown to the court, acknowledged itself indebted and bound unto the Hannibal & St. Joseph Railroad Company, or bearer, in the sum of $1,000, which sum the said county of Greene thereby promised to pay to said company, or bearer, at the National Park Bank, in the City of New York, twenty years after the date thereof, together with interest thereon from the date thereof, at the rate of eight per cent. per annum, which interest should be paid semi-annually on the presentation and delivery at said bank of the coupons thereto severally subjoined until the payment in full of said principal sum; said bond being issued under and pursuant to an order of the county court of Greene county, State of Missouri, to aid in building a railroad through said county and in accordance with an act of the Legislature of the State of Missouri, entitled An act to incorporate the Kansas City, Galveston & Lake Superior Railroad Company,” approved February 9th, 1857, and “An act to amend an act entitled ‘An act to incorporate the Kansas City, Galveston & Lake Superior Railroad Company,’ approved February 9th, 1857, and for other purposes,” approved February 13th, 1864, and also an act entitled “An act to aid in the building of branch railroads in the State of Missouri,” approved March 21st, 1868, as is therein fully recited.

“And plaintiff states that defendant, by its certain interest coupon No. 3, signed by Jared E. Smith, the then treasurer of said Greene county, and dated at Springfield, Greene county, Missouri, on the 1st day of August, 1871, detached from said bond and herewith filed, acknowledged to owe the sum of $40, payable to bearer on the 1st day of February, 1873, being the interest due on said bond No. 309 for $1,000, which coupon was made payable at the National Park Bank in the city of New York, and State of New York, and that the plaintiff is the owner, holder and bearer of said interest coupon, which was at maturity presented at the said National Park Bank and payment demanded, which was refused, and the same remains wholly due and unpaid, and which coupon is herewith filed, and for which, with interest at the rate of six per cent. since the 1st day of February, 1873, plaintiff demands judgment.”

The defendant not appearing, judgment was entered by default on the 2nd day of December, 1875, for $3,929.40, the amount of the said coupons and interest. On the same day the defendant filed a motion to set aside the judgment so entered, which was overruled, and an appeal granted.

C. W. Thrasher and H. C. Young for appellant.

John O'Day for respondent.

1. PRACTICE: service of summons upon county.

SHERWOOD, C. J.

We think the service in this case sufficient. The statute provides that: “When any action shall be commenced against any county, a copy of the original summons shall be left with the clerk of the county court fifteen days at least before the return day thereof.” 1 Wag. Stat., § 6, p. 408. The statute elsewhere provides how a summons shall be served. 2 Wag. Stat., § 7, 1007. But in the same section it is stated that the method mentioned therein shall be pursued, “ except as otherwise provided by law.” The law, as above seen, has “““otherwise provided,” and that special manner of service must be regarded as exclusive, since there can be no doubt of the power of the Legislature to regulate the service of process. Whether the law, respecting the particular way of serving process on counties, is a wise one, is a matter not of judicial concern. It is not a little singular, however, that the prosecuting attorney, even if he had doubts as to the sufficiency of the service, should have concluded to run the risk of the service being valid. The much safer course for him to have pursued, was to have entered his appearance and made a defense, if he had one on which he could have relied.

2. PLEADING: action on county bonds: requisites of petition.

We are next to consider the sufficiency of the petition. It is stated in each count of that pleading, that on the 1st day of August, 1871, by its writing obligatory, or bond, the county acknowledged itself indebted and bound unto the Hannibal & St. Joseph Railroad Company, or bearer, in the sum of $1,000. which sum the said county promised to pay said company, or bearer, at, &c., “said bond being issued under, and pursuant to, an order of the county court of Greene county, State of Missouri, to aid in building a railroad through said county, and in accordance with an act of the Legislature of the State of Missouri, entitled ‘An act to incorporate the Kansas City, Galveston & Lake Superior Railroad Company,’ approved February 9th, 1857, and ‘An act to amend an act entitled an act to incorporate the Kansas City, Galveston & Lake Superior Railroad Company, approved February 9th, 1857, and for other purposes,’ approved February 13th, 1864, and also ‘an act to aid in the building of branch railroads in the State of Missouri,’ approved March 21st, 1868.” But there is nothing in the petition showing any connection between the Hannibal & St. Joseph Railroad Company and the railroad to be built, nor what railroad it was, nor that Greene county had ever subscribed to the stock of the company named, or, indeed, to the stock of any railroad company...