109 Mo. App. 710 | Mo. Ct. App. | 1904
This was an action for personal damages in which judgment was taken by default, and defendant sued out a writ of error from this court.
The petition designated the defendant as, “The Quincy, Omaha and Kansas City Eailroad,” omitting the word “company,” and the summons was issued to correspond with the petition. It was served on defendant’s station agent in the proper county. The return of the sheriff was that he had served it, with a copy of the petition, on Harry Moss, “he being in charge of the business office of the Quincy, Omaha & Kansas City Eailroad Company, the same being delivered to him while in charge of said office the president or other chief officer of said railroad company not found in my county.” The sheriff was allowed to amend his return so as to conform to the facts as follows: “Executed ,the within writ together with a copy of the within petition and summons thereto attached, to Henry Moss, he being the agent-.and in charge of the business office of the Quincy, Omaha & Kansas City Eailroad Company in the city of Trenton, in the county of Grundy, the State of Missouri, on said 9th day of January, 1904, with the said Harry Moss, the person having charge of said business office, the president or chief officer of said railroad company can not be found in my said county.”
On the 29th day of January, 1904, an interlocutory
The writ of error was sued out in the name of, “The Quincy, Omaha & Kansas City Railroad.”
We assume from the statement and argument of the respective parties that the name of the defendant intended was, “The Quincy, Omaha & Kansas City Railroad Company. If such he the fact and there is any force in the contentions of defendant (plaintiff in error) this writ is prosecuted in the wrong name — that of the “Quincy, Omaha & Kansas City Railroad.” There is no judgment against the plaintiff in error under that name.
One of the contentions of defendant, however, is that the proceedings are invalid for want of proper service of process. The argument is, that the service upon railroad corporations as required by the statute is constructive service, therefore a strict adherence to the law is required. Such is the law in instances of constructive service — for example, by publication. Corrigan v. Schmidt, 126 Mo. 304; Rosenberger v. Gibson, 165 Mo. 16; Hajek v. Bohemian, etc., Society, 66 Mo. App. 568; Gamasche v. Smythe, 60 Mo. App. 161. But the fault with defendant’s contention is, that this is not a substitution or constructive service. But, on the contrary, actual personal service on the corporation itself. The alleged fault is that the return shows that it was served on defendant’s station agent without showing that the president or other chief officer of defendant was not found in the county. The return recites that, the “president or chief officer” could not be found in the county, leaving out the word “other.” However, the service was regular. Section 995, Revised Statutes 1899, was amended by the Legislature by an act approved March 23, 1903. The section thus amended uses the words, “president or other chief of-
It is further contended that the judgment is void for want of jurisdiction over defendant, viz.: Because the petition filed instituted a suit against the 1 ‘ Quincy, Omaha & Kansas City Railroad” and the summons was also so designated and directed, while the sheriff’s return shows that he summoned the “Quincy, Omaha & Kansas City Railroad Company” against which the judgment was rendered. If there is any difference between the “Quincy, Omaha & Kansas City Railroad”' and the ‘ * Quincy, Omaha & Kansas City Railroad Company,” the defendant against whom judgment was rendered is not in a condition to complain for it is not in court as the writ of error was sued out in the name of the former, against whom there is no judgment. If the theory of plaintiff is correct, we must dismiss the writ because the judgment in controversy is against another and different party. The controversy should end at once as we have no such record as the writ calls for.
It is not, however, out of place to call attention to section 672, Revised Statutes 1899, which provides that for imperfections of the kind under consideration no judgment shall be set aside. All such imperfections may be cured in the trial or appellate court. Section 673, idem.
It is therefore ordered that the writ of summons and petition stand and be amended so as to read as against the Quincy, Omaha & Kansas City Railroad Company, and that the cause be affirmed.