113 Mo. App. 71 | Mo. Ct. App. | 1905
— In the years 1901 and. 1902, the. Southern Missouri & Arkansas Railroad Company was constructing its railroad through Butler and Ripley counties, Missouri, and Randolph county, Arkansas, to
Plaintiff made two efforts to serve notice of his lien account on the railroad company, both of which, it was claimed by the company on the trial, were ineffectual. The trial court overruled the objection and held that the service of the lien account was sufficient and admitted the same in evidence. Defendant duly excepted to this ruling and contends here that the service of the lien account was not good and for this reason the judgment should be reversed. The evidence shows that a copy of the lien account was delivered to H. E. Johnson, station agent of defendant at Poplar Bluff, by the sheriff of Butler county, on July 5, 1902; it also shows the following effort of plaintiff to serve defendant company, through the United States mail with a copy of the account and notice, and that the same had been filed for the purpose of acquiring a lien on the railroad:
“July 5, 1902.
“E. F. Blomeyer,
“Cape Girardeau, Mo. >
“Dear Sir:
“I inclose you herewith copy of lien statement of William Baumhoefer against your road for the sum of $7,695.10, on account of piling, bridge and cattle guard work, the original of which was this day filed with the clerk of the circuit court of Butler county, Missouri.
“Very respectfully,
“(Signed) E. R. Lentz.
*76 “Registry Receipt.
“Post Office at Poplar Bluff, Missouri.
“Registered letter (No. 51) of E. R. Lentz, addressed to E. F. Blomeyer, Oape Girardeau, Missouri.
“Received 7-7, 1902. P. M'.
“(Postmark of Delivering office, Cape Girardeau, Missouri, July 9, 1902, 11:30 a. m., and date of delivery.)
“Post Office Department — Official Business. • “Penalty of |300.00 for private use.
“Return to (name of sender) E. R. Lentz (street and number or Post Office Box) Post Office at Poplar Bluff, Mo. (County-:-) (State---).
Registry Return Receipt.
“Received from the Postmaster at Cape Girardeau '(delivering office) Registered Letter No. 51, from Poplar Bluff, Mo. (office of origin) addressed to E. F. Blomeyer (name of addressee). Date (date of delivery) 190 — . E. F. Blomeyer (name of addressee). Care Wm. A. J. Wild (Signature of addressee’s agent).
“(When delivery is made to an agent of the addressee, both addressee’s name and the agent’s signature must appear in this receipt.)
“A registered article must not be delivered to anyone but the addressee, except upon the addressee’s written order. When the above receipt had been properly signed, it must be postmarked with name of delivering office and actual date of delivery and mailed to its address, without envelope or postage.”
There was evidence tending to show that E. F. Blomeyer was the vice-president and general manager of the defendant St. Louis, Memphis & Southeastern Railway Company.
It is alleged in the petition that both of the defendant railroad companies are Missouri corporations.
Section 4241, R. S. 1899, in respect to this character of liens, provides: “It shall be the duty of all persons claiming the benefit of such lien, within ninety days next
In Williams & Pearson v. Dittenhoefer, supra, the court, speaking of notice of a lien account which was attempted to be served on the Southern Missouri & Arkansas Railroad Company, one of the defendants, said: “Notice to the agent of a corporation is by fiction of the law notice to the corporation itself of matters within the scope of his agency and not otherwise. Such is the general doctrine of ‘Standard text-writers,” citing Story on Agency (9 Ed.), sections 140, 140a; Angel & Ames on Corporations (11 Ed.), section 305; 1 Morawetz on Corporations (2 Ed.), sections 540b, 540c.
In Heltzell v. Railroad, 77 Mo. 315, the Supreme Court said:
“In the absence of any statutory mode of service of a notice upon a corporation, when it cannot be had upon the chief officer or managing agent, service upon*78 any officer, whose official relation to the governing body, or managing agent, or chief officer, would make it his duty to communicate the notice, will be sufficient. The secretary is such an officer.”
The only statutory provisions concerning service of notice on domestic corporations are found in section 998, R. S. 1899, which provides: “All notices, orders and rules to be served in the progress of any cause shall be served in like manner as in other civil cases.” In other civil cases they are served upon the opposite party or his attorney. [Sections 586, 716, R. S. 1899.] However, these sections do not appear to have any bearing on the service of notice of lien accounts as such notice is not one to be served in the progress of any cause but for the purpose of acquiring a lien to be foreclosed in a suit to be thereafter commenced, and we think the lien account should be served on the defendant and that service on its attorney would not be good unless such matters came within the scope of his employment. In the Williams & Pearson case, supra, it was held that service of notice on Johnson, the station agent of the defendant corporation, was not good for the reason his duties were not such as to bring him within the reasoning of the rule announced in Heltzell v. Railroad, supra. On these authorities we conclude that the service of the notice on Johnson, as station agent, was unavailing and unless the defendant was served through the United States mail, the notice was not served at all, and the judgment should be reversed. As we have seen the service of the notice must be personal. The term “personal service” has a fixed and definite meaning in law. It is service by delivering the writ, notice or order to the defendant personally as contradistinguished from other'modes of service, and thence does not include service by leaving a copy at the defendant’s last known place of abode or by mailing a copy to him. [First National Bank v. Holmes, 94 N. W. 764; Moyer v. Cook, 12 Wis. 335; Ryan v. Kelly; City of Sedalia v. Gallie; Mayer v. Christian, supra.]
“Section 3898, Revised Statutes 1879, in so far as it provides that a notice from a surety on a bond, bill or note, to the holder thereof, may be served by the delivery of a copy to the person notified, contemplates a personal service, that is a delivery directly to the person notified, and is not satisfied by proof of the proper mailing of the notice, and receipt thereof through the post.”
We conclude that the evidence shows affirmatively that the defendant was not legally served with a copy of the lien account and for this reason plaintiff did not acquire a right to foreclose his lien against the defend-, ant railroad company.
The judgment is therefore reversed.