Cornwall v. Star Bottling Co.

128 Mo. App. 163 | Mo. Ct. App. | 1907

BLAND, P. J.

Defendant is a corporation. The action was to recover a balance of $150 on account. Defendant moved the court to quash the sheriff's return of the summons, for the reason “that no summons was ever served upon the defendant; that no copy of summons and petition was ever left with Wm. Freudenau, secretary of the defendant company; that Alex. D. Grant, president, and J. Wm. Taylor, vice-president, of the defendant company, resided and maintained offices in the city of St. Louis, Missouri, and were present in the city of St. Louis, Mo., and could readily have been found by the sheriff for service of summons in this cause.” Affidavits were filed in support of the motion. The motion to quash was overruled and, defendant declining to plead frirtber, or to appear to defend the action, judgment was rendered against it by default. A motion to set aside the judgment by default was filed and overruled, whereupon defendant appealed.

The sheriff’s return is as follows:

“Served this writ in the city of St. Louis, Missouri, on the within named defendant, the Star Bottling Company (a corporation), this seventeenth day of December, 1906, by delivering a copy of the writ and petition as furnished by the clerk to William Freudenau, secretary of the said defendant corporation, he being in said defendant’s usual business office and in charge thereof. The president or other chief officer of said defendant could not be found in the city of St. Louis at the time of the service.”

Defendant’s contention is that the judgment was irregular in that the sheriff’s return “does not show that the president or other chief officer could not be found in the city of St. Louis, as required by statute; it avers they could not be found ‘at time of service.’ "Non constat they might have been found some other hour of the same day, or at some other day in time for service.” Section 995, Eevised Statutes 1899, provides that service of summons on a corporation shall be made on the president or other chief officer of the company, or, in his absence, by leaving a copy of the petition and summons at any business office of the company with the person having charge thereof. Section 996 requires the sheriff to express in his return on whom, how and when the summons had been executed, “and if not on the chief officer, he shall express the absence of such officer, or that he cannot be found.” The affidavits filed in support of the motion to quash the return are to the effect, that both the president and vice-president of defendant maintained offices in the city of St. Louis, and were almost continuously in the city for six months prior to the date the affidavits were made, February 21, 1907.

William Freudenau, secretary of the company, filed an affidavit denying in toto the truth of the return, and stating that the first intimation he had that suit had been brought was after judgment had been rendered. It is no longer a.debata hie question in this State that wlnm the officer’s return to a summonsi shows service in the manner prescribed by statute it is conclusive as to the parties to the suit, and if the return is, false in fact, the remedy of the party injured is by suit on the officer’s bond. [Smoot v. Judd, 184 Mo. 508, 88 S. W. 481; Taussig v. Railroad, 186 Mo. 269, 85 S. W. 378; State ex rel. v. Cowell, 102 S. W. 573; Realty Co. v. Packing Co., 112 Mo. App. 271, 86 S. W. 880; Rosenthal v. Windensohler, 115 Mo. App. l. c. 243-4, 91 S. W. 432, and cases cited.] Therefore, the affidavits filed in support of the motion to quash were inadmissible as evidence and were properly disregarded by the trial court. But it is contended that the return does not show the president, or other chief officer of the company, was absent from the city of St. Louis, or could not be found in said city. The statement in the return, that the president or other chief officer could not be found in the city of St. Louis- on the day the service was made conclusive of that fact, and the fact that the president or other chief officer might have been found on some other day does not vitiate the return. The officer would naturally go to the office- of the corporation to make service, and if on arriving there he ascertained the president or other chief officer could not be found in his bailiwick on that day, he would not be required to postpone service of the writ to some other day, if he could then and there serve it in one of the methods authorized by the statute.

The judgment is affirmed.

AH concur.