167 Mo. App. 683 | Mo. Ct. App. | 1912
This is a suit on an account, which originated before a justice of the peace. Defendant is a railroad company incorporated under the Missouri statutes. Plaintiff insituted the present suit on an account for indebtedness against defendant before a justice of the peace, and the constable served the summons upon Ralph Schultz, defendant’s auditor. The return on the summons is as follows:
“I hereby certify that I served the within writ by delivering a copy to Ralph Schultz, agent and auditor of the within named corporation, in charge of an office and place of business of said corporation in Cape Girardeau county Mo., the 7th day of October, 1909, in Cape Girardeau township, Cape Girardeau county, Mo.,
Mileage ............................... Miles,
Pees, $0.60. *
(Signed) Geo. Rodenmayer, Constable.”
The statute requires service of the summons in such cases to be made upon the president or other chief . officer of the company or, in his absence, by leaving a copy thereof at any business office of the company with the person having charge thereof. [See sec. 1766, R. S. 1909.] And section 1767, Revised Statutes 1909 requires the officer serving the process to express in his return upon whom, how and when the same has been executed. The return above set forth is insufficient under the statute, for it does not recite affirmatively on its face that the president or other chief
The defendant did not appear to the action before the justice of. the peace, and the justice entered a judgment by default against it as though a valid service of summons was had. Afterwards, within due time, defendant perfected an appeal from the judgment of the justice to the court of common pleas of Cape Girardeau county, and appeared in that court for the purpose only of quashing the return on the summons and dismissing the cause for the reason that the court had obtained no jurisdiction over the person of defendant, as appeared from the return. The court sustained defendant’s motion to this effect, quashed the return, dismissed plaintiff’s cause and vacated the alleged judgment of the justice. Prom this ruling, plaintiff prosecutes an appeal to this court.
It seems to be conceded here on the part of plaintiff that the service was defectively made on defendant and that it at no time ever entered its appearance in the cause, unless it did so by perfecting an appeal to the court of common pleas. The only argument advanced in this court on the part of appellant is that, through perfecting an appeal from the judgment of the justice to the court of common pleas, the defendant thereby waived the defective service, and voluntarily entered its appearance in the cause. There can be no doubt that such was the prior course of decision in this State. It was held in Rice v. Railroad, 30 Mo. App. 110, “that the taking of an appeal by a defendant from the judgment of a justice of the peace waives all errors or imperfections in the service of process and is equivalent to a general appearance to
From what has been said, it appears that the justice acquired no jurisdiction over the person of defendant and that under the more recent rule of decision the matter of defective service was not waived and jurisdiction conferred by perfecting an appeal from the justice court. This being true, the court of .common pleas very properly quashed the service and dismissed the cause. The judgment should be affirmed. It is so ordered.
