Williams & Pearson v. Dittenhoefer, Southern Missouri & Arkansas Railroad Company

• Decision Date: 30 March 1905
• Parties: WILLIAMS & PEARSON v. DITTENHOEFER, SOUTHERN MISSOURI & ARKANSAS RAILROAD COMPANY, and ST. LOUIS, MEMPHIS & SOUTHEASTERN RAILROAD COMPANY, Appellants
• Court: Missouri Supreme Court

86 S.W. 242

188 Mo. 134

WILLIAMS & PEARSON v. DITTENHOEFER, SOUTHERN MISSOURI & ARKANSAS RAILROAD COMPANY, and ST. LOUIS, MEMPHIS & SOUTHEASTERN RAILROAD COMPANY, Appellants

Supreme Court of Missouri, First Division

March 30, 1905

Appeal from Butler Circuit Court. -- Hon. J. L. Fort, Judge.

Reversed.

L. F Parker, James Orchard and E. H. Seneff for appellants.

(1) There is no service of the notice in this case. The statute is that it shall be the duty of all persons claiming said lien within said ninety days to serve a copy of the account on the person or corporation owning or operating or having charge of said road or of the property to which said lien attaches. R.S. 1899, sec. 4241. The statute makes no provision for serving this notice. Where notice is required by statute without prescribing the method of service personal notice is intended, and personal notice must be given by a delivery thereof, directly to the person to be notified, and not by delivering the original or a copy to his servants or members of his family at his house. 15 Am. and Eng. Ency. Law, p. 134. The notice required under mechanic's lien law cannot be served by leaving the original or a copy at the residence of the owner of the property to be charged with a servant of the family. Ryan v. Kelly, 9 Mo.App. 396; Sedalia v. Gallie, 49 Mo.App. 397. It is true that in the absence of statutory mode of service on a corporation, when it cannot be had on the chief officer or managing agent, if served upon any officer whose official relation to the governing body or managing agent or chief officer would make it his duty to communicate the notice, would be sufficient. A secretary is such an officer. Heltzell v. Railroad, 77 Mo. 315. It is also said by the court in another case that it was held in the absence of any statute prescribing the manner of service of such notices, the service should be made on the chief officer or managing agent of such corporation, and when it can not be had on either of such officers, service on any officer whose official relations to the governing body or managing agent or chief officer of the corporation would make it his duty to communicate such notice to such body, agent or officer, would be sufficient. Heltzell v. Railroad, 77 Mo. 483. (2) There was no evidence that H. E. Johnson was the agent of the railroad.

E. R Lentz for respondents.

(1) Appellants claim that there was no proof that H. E. Johnson was the agent of the railroad company. In reply to that contention attention is called to the fact. Johnson himself received a copy of the lien statement and signed a receipt for the same, in which he designates himself as "station agent of the Southern Missouri and Arkansas Railroad Co." This receipt was offered and read in evidence on the trial. No objection was taken, at the time, to the introduction of this receipt in evidence, other than that counsel objected as follows: "We object to a service of that kind of a paper upon the agent." Besides, the summons issued in this case was served upon the same H. E. Johnson as station agent of said railroad company in charge of its office at Poplar Bluff, Missouri, and the sheriff's return so shows it. No objection was made at any time that Johnson was not the agent of the railroad company. Johnson's receipt shows that he was the agent. This receipt was admitted without objection, and it is too late to raise that question now. Besides, this receipt is sufficient proof of agency in the absence of a showing to the contrary. It is not even now contended that Johnson was not the agent of the company. (2) It is next insisted that the service of notice upon the station agent of the defendant railroad company is not service upon the railroad company. The statute in relation to corporations provides that all notices, etc., required to be served in the progress of any cause shall be served the same as in other civil cases. R.S. 1899, sec. 998. Service of summons upon corporations may be had by delivering a copy of the writ to the president or other chief officer, or in his absence by leaving a copy thereof at any business office of such corporation with the person in charge thereof. R.S. 1899, sec 995. The copy of the lien statement was left at the business office of the corporation in Poplar Bluff, Missouri, with the agent in charge and he acknowledged receipt thereof in writing. It was a matter of common notoriety that one Newman Erb was president of the Southern Missouri & Arkansas Railroad Company and also of the St. Louis, Memphis & Southeastern Railroad Company; that the residence of said Erb was in New York city, and that he was not a resident of Missouri. The returns of the writs of summons issued in this case show that the president could not be found in Butler county nor in Cape Girardeau county, Missouri. These returns are a part of the record proper, and the court will take notice of them, even though not offered in evidence. In the absence of the president or other chief officer, service of the lien statement upon any officer whose duty it would be to communicate such notice to the governing body or chief officer will be sufficient. Heltzell v. Railroad, 77 Mo. 317; Heltzell v. Railroad, 77 Mo. 483. Service of the lien statement upon the station agent of a foreign corporation is service on the company. Morgan v. Railroad, 76 Mo. 176. When the testimony was offered to prove the service of copy upon the agent, no objection was then taken to its introduction upon the ground that it was not shown that the president was not in the county at the time. Had such objection been made at the time, the court would probably have sustained the objection and plaintiffs supplied the proof. But no such objection was made and no exceptions saved. It is now too late to raise the question in this court. Newton v. Miller, 49 Mo. 298; Green v. Walker, 99 Mo. 68; Distilling Co. v. Lock, 59 Mo.App. 637; Boggs v. Laundry Co., 86 Mo.App. 616; Stark v. Knapp & Co., 160 Mo. 529.

LAMM J. Brace, P. J., is absent.

OPINION

LAMM, J.

The Southern Missouri & Arkansas Railroad Company is a domestic railroad corporation, and in 1901, built a railroad from the city of Cape Girardeau through the county of the same name, as well as the counties of Bollinger, Stoddard, Wayne, Butler and Ripley to the line between Missouri and Arkansas, and thence into Arkansas. It let a contract for the construction of its roadbed, etc., to Irvin M. Dittenhoefer, who in turn contracted a portion of the work to Killebrew & Co., a firm, and they in turn contracted with respondents, who performed.

A dispute arising over the classification and payment for material in embankments as "earth" which, it was contended, should have been classified and paid for as "loose rock," respondents, within ninety days after completing their work, filed an alleged just and true account of the amount due them after all just credits had been given, stating the facts alleged to be necessary to constitute a lien under article 4, chapter 47, Revised Statutes 1899, in the office of the clerk of the circuit court of Butler county, and, within due time, sued to enforce their statutory lien.

Dittenhoefer was made a party, but, failing in service, the cause was dismissed as to him. Killebrew & Co. were not sued. After the completion of the work and the filing of the "lien paper," the Southern Missouri & Arkansas Railroad Company sold out to its coappellant, the St. Louis, Memphis & Southeastern Railroad Company, and both said corporations were made parties defendant in the suit.

At a trial, with the aid of a jury, a judgment resulted establishing the indebtedness of Killebrew & Co. to respondents at $ 16,512.97, and a lien for said sum was foreclosed on the railroad formerly known as the Southern Missouri & Arkansas Railroad and now known as the St. Louis, Memphis & Southeastern Railroad, including its roadbed, station houses, depots, bridges, rolling stock, real estate and improvements, and a special fi. fa. ordered issued.

From this judgment the two corporate defendants duly appealed.

It should be said at the threshold that the assignment of errors both in quantity and quality reflect credit on the versatility of counsel, but such errors need not be considered in blanket form or in severalty for the following reasons: the turning point in the case, in our opinion, relates to the notice of the lien or account, and since the real debtors against whom a judgment in personam might go are not parties to the record, it results that the proceeding is essentially one in rem and that any judicial discussion of the points not necessary to the decision of the question of notice, would rise to the mark of mere obiter and no higher.

Eliminating, then, as a work of supererogation, any detailed statement of the exhaustive pleadings, instructions and the other points directed to the paper and trial issues, let the following statement of the crucial question suffice:

In their petition, as was necessary, respondents averred "that they did within the said ninety days from the completion of said work, serve upon the Southern Missouri & Arkansas Railroad Company, it having charge and control of said railroad, a true copy of said account, as required by section 4241 of said Revised Statutes of 1899."

This allegation among others was denied in the answer, and respondents held the laboring oar on the proof. The record preserves the following on the proof of notice:

"Mr Lentz: I now desire to offer in evidence the receipt of H. E. Johnson, station agent of the Southern Missouri & Arkansas Railway Company at Poplar Bluff, Missouri, endorsed on the back of a copy of the lien statement, which has been read in evidence.

"Mr. Burroughs: We object to a service on the...