Williams v. United States Express Co.

• Decision Date: 31 March 1916
• Docket Number: No. 17637.,17637.
• Citation: 184 S.W. 1146
• Parties: WILLIAMS v. UNITED STATES EXPRESS CO.
• Court: Missouri Supreme Court

184 S.W. 1146

WILLIAMS v. UNITED STATES EXPRESS CO.

No. 17637.

Supreme Court of Missouri, Division No. 2.

March 31, 1916.

Appeal from Circuit Court, Jackson County; James E. Goodrich, Judge.

Action by H. R. Williams against the United States Express Company. From an order granting a new trial, plaintiff appeals. Transferred to Kansas City Court of Appeals.

T. A. Witten, of Kansas City, for appellant.

FARIS, P. J.

Plaintiff sued defendant in the circuit court of Jackson county for $141.85, and had judgment for that sum. Some of the facts will be set out in our discussion of the case. Such others as ace necessary to an understanding of what we shall say, run thus: Defendant was sued, summoned, and served as a corporation. It appeared specially, and, averring that it is a foreign joint-stock company and not a corporation, moved to quash the summons. This motion was overruled. Thereafter plaintiff had the sheriff to amend his return so as to show service on defendant as a joint-stock company, and a default was noted. Subsequently plaintiff amended his petition to show the fact that defendant is a corporation and a joint-stock company. After the making of both of said amendments and pending the holding of the case under advisement, defendant appeared and filed its demurrer to the petition, for that: (a) Plaintiff's petition is insufficient; and (b) defendant is not a suable legal entity; which demurrer was overruled, and, defendant pleading no farther, judgment nil dicit was rendered for plaintiff for the sum prayed for. The trial court, on motion of defendant, set this judgment aside and granted a new trial to defendant, whereupon plaintiff appealed.

It is urged, tacitly at least, that we have jurisdiction because construction of the Constitution is involved. Let us see if this be so. Respondent complains for the first time, in its motion for a new trial, that section 28, art. 2, of the Constitution was violated, for that, being entitled to a trial by jury, it was denied the same. But respondent got a new trial, and it did not appeal. If it got such appeal on any constitutional ground deemed erroneous by appellant, then appellant ought — as he did not — to have raised that point in his appeal; failing to do so, the constitutional question mooted by respondent falls out of the case. So that it does not lie in the mouth of respondent to urge any denial of a constitutional right in such wise as to confer jurisdiction in us. Touching the right of appellant to raise a constitutional question, we note that the record nowhere refers to the Constitution, except it is given in narrative form as the reason for the action of the court nisi in sustaining the motion for a new trial, that:

"While the court is of the opinion that the constitutional and statutory provisions of this state, making joint-stock companies corporations, are applicable, the Kansas City Court of Appeals has decided that a joint-stock company cannot be sued as such."

In other words, the learned court nisi inferably says that while it is of opinion that section 11, art. 12, of the Constitution of Missouri makes defendant a corporation though it avers itself to be a joint-stock company, the Kansas City Court of Appeals has held to the contrary in some other cases. Taking judicial notice of the limitations of jurisdiction in a Court of Appeals in the matter of passing upon a constitutional question, we are not able to see wherein the Constitution is involved. We can see wherein section 2963, R. S. 1909, which, mutatis mutandis is in the exact words of the Constitution, was held in mind by the court nisi and is, it may be, involved. This section declares that:

"The term `corporation' as used in this chapter [chapter 33] shall be construed to include all joint-stock companies or associations having any powers or privileges not possessed by individuals or partnerships."

It may also be true that the construction of section 2990, which prima facie seems to put joint-stock companies and corporations in the same category, for the purposes of chapter 33, and likewise section 1760, which provides for the manner of service of process on joint-stock companies, may be involved. This latter section was lately amended (Laws 1915, p. 225), apparently in a meticulous legislative effort to resolve the exact situation here present. Whether an amendment was in fact necessary we need not rule. But the statutes, supra (sections 1760, 2990, 2963, R. S. 1909), seem to us to stand between the court and the Constitution. Till said sections have been construed by declaring that joint-stock companies are not for the uses and purposes of chapter 33 and chapter 21 in the same category as corporations, no need arises in our opinion to construe the Constitution. Every question in this case can be determined without reference to any provision of ...