150 Mo. App. 89 | Mo. Ct. App. | 1910
Declining to plead further, plaintiff appealed after a general demurrer had been sustained to the following petition:
“Plaintiff for its amended petition, leave of court to file the same being first had and obtained, states that it is a Fraternal Beneficiary Society, incorporated, organized and existing under and by virtue of the laws of the State of Illinois, with its home office at Decatur in said state; that defendant is a resident of Calumet township, Pike county, Missouri.
“Plaintiff further states that on April 21, 1908, defendant instituted in this court' a suit against it on a benefit certificate issued February 26,1900, by the Acme Fraternal Union, then a fraternal beneficiary society incorporated under the laws of the State of Missouri, with its home office at Sedalia, Missouri, to one Annie Wire, then a resident of the State of Missouri, payable on her death to defendant herein, alleging in his petition that since the issuance of said benefit certificate to said- Annie Wire, said Acme Fraternal Union had disposed of its business to this plaintiff and that all liability under and by the terms of said benefit certificate so issued to Annie Wire, as aforesaid, by said Acme Fraternal Union, had been assumed by this plaintiff and that by reason thereof, and of the death of said Annie
“Plaintiff further states that on April 21, 1908, a summons Avas issued in said cause by the clerk of this court, directed to this plaintiff, which said summons Avas delivered to William F. Campbell, sheriff of Pike county, Missouri, and alleged by him to have been executed as folloAvs, as slioAvn by his return thereon, to-wit:
“ ‘1 hereby certify that at the county of Pike, township of Buffalo, State of Missouri, on this 22d day of April, A. D. 1908, in the Avithin named suit, I served process on the within named defendant, The Fraternal Bankers of America Company being the first defendant served herein.
“ ‘And I further certify, that at said time and at and in the business office of said company, the defendant hereinafter described, I executed said service on said company, by delivering at and in said business office a duly certified copy of the original Avrit herein, and of the hereto attached copy hereof together with a duly certified copy of the original petition and of the hereto attached copy thereof to Susan Ross, who then was and ever since has been the agent of the said company defendant, a foreign corporation then and ever since having in the city of Louisiana, in the county of Pike and toAA'iiship aforesaid, its said business office Avkere said process Avas served as aforesaid, that is to say, the business office usually had and maintained by it in the transaction of its usual, ordinary and customary business, with its said agent, Susan Ross, in charge thereof, and in said business office and in charge thereof at the time of said service of said process as aforesaid.
“ ‘And I further certify, that at the time of said service the president and other chief officers of said company defendant, were absent from my said county and Avere not found.
“ ‘W. F. Campbell,
“ ‘Sheriff of Pike county, State of Missouri.
“ ‘By Fred Tumelty, Deputy.’ ”
“Plaintiff further states that thereafter, to-wit, on M]ay 29, 1908, and during the regular May term, 1908, of this court, final judgment by default was rendered in said cause in favor of David Wire, defendant herein and against this plaintiff, who was defendant therein, for the sum of five hundred and twenty-two and fifty one-hundredths dollars ($522.50) and execution ordered to issue therefor; said judgment being in words and figures as follows, to-wit:
“ ‘Now comes the above entitled plaintiff, David Wire, by his attorney, but the Federal Bankers of America, although duly summoned, comes not,- but makes default ; wherefore, on motion of plaintiff by his attorney, the petition herein is taken as against the defendant as confessed. Therefore plaintiff, by his attorney waives a jury and submits this cause to the court upon the pleadings and proof adduced; and the court, having duly heard and considered the same, finds for the plaintiff and assesses his damages in the sum of five hundred and twenty-two and fifty one-hundredths dollars ($522.-50) and all costs, and it is therefore adjudged and decreed by the court that plaintiff recover of the defendant the said sum of five hundred and twenty-two and fifty one-hundredths dollars ($522.50) with interest from this date, at the rate of six per cent per annum, and all costs, and. that the plaintiff have execution therefor against the defendant.’
“Plaintiff further states that neither it, nor any person connected with it in any capacity whatever had or obtained any knowledge of the institution of said suit, or the procurement of said judgment until on or about July 10, 1908; that because thereof it did not
“Plaintiff further states that the petition of defendant herein, filed by him as plaintiff in the suit so instituted by him as aforesaid, is absolutely untrue in the statement that this plaintiff assumed any liability whatever arising under the terms and conditions of said benefit certificate issued by said Acme Fraternal Union to said Annie Wire. Plaintiff further states that this plaintiff was not liable to David Wire for any amount whatever under the terms of said benefit certificate, and in the statement that the sum of five hundred dollars, or any other sum, was due him thereunder from it.
“Plaintiff further states that it has a good and meritorious defense to defendant’s alleged cause of action in said suit so instituted by him, as aforesaid, and had such defense at the time of the institution thereof and the procurement of said judgment, and would have made such defense had it any notice or information whatever, of the bringing of said suit. That it is ready and willing to prove to the satisfaction of this court if permitted so to do, that it had no notice or information of the bringing of said suit; that said Annie Wire to whom the benefit certificate sued on was issued by the Acme Fraternal Union never was a member of this plaintiff at any time; that no liability whatever attached to plaintiff by reason of the death of said Annie Wire; that said Annie Wire died April 30, 1907, and this plaintiff was not organized or incorporated, and did not begin business until October 1, 1907, that the
“Wherefore this plaintiff prays the court to set aside and vacate said judgment rendered against it and in favor of defendant in said suit so instituted against it as aforesaid; and that it be permitted to answer or demur to the petition therein filed, and on which said judgment was rendered, within such time and on such terms as to the court may seem right and proper, that this plaintiff may have its day in court and an opportunity to defend such action.” .
Plaintiff takes the position it is entitled to. relief under the section of the statutes permitting bills of review and which reads as follows:
“When such interlocutory judgment shall be made and final judgment entered thereon against any defendant who shall not have been summoned as required by this chapter, or who shall not have appeared to the suit,' or has been made a party as the representative of one who shall have been summoned or appeared, such final judgment may be set aside, if the defendant shall, within the time hereinafter limited, appear, by petition for review, show good cause for setting aside such judgment.” R. S. 1899, sec. 777.
Though plaintiff alleges it is a fraternal beneficial society, it does not allege compliance with the statutes of Missouri so as to permit it to do business in the state nor that it had appointed the Superintendent of Insurance of the state to receive service of process. [E. S. 1899, secs. 1410, 1412.] In truth there is no averment plaintiff had been transacting business in this state, though the return of the sheriff to the summons issued in the case of defendant David Wire against plaintiff, recited it kept an office in Pike county, where it transacted its usual and ordinary business. As regards service of process, plaintiff occupied the position
Having ascertained the service of summons in the case of Wire against plaintiff was valid, the next question is Avhether the sheriff’s return that he had delivered a copy of the petition and Avrit, is conclusive; and under the decision of the Supreme Court in Smoot v. Judd, 184 Mo. 508, 83 S. W. 481, we must hold it was conclusive between the parties, in the absence of collusion and fraud between defendant Wire, plaintiff in the other action, and the officer who executed the writ. [Regent Realty Co. v. Packing Co., 112 Mo. App. 271, 279, 86 S. W. 880.] Not denying this is the general rule, plaintiff’s counsel insist nevertheless they may attack the return of the officer by a petition in the nature of a bill of review filed under authority of section 777 of the statutes, for the reason that the service on plaintiff in the action brought against it by Wire Avas a constructive service and therefore within the efficacy of that section; that the petition for review will lie where there has been an interlocutory judgment
The judgment is affirmed.