107 Mo. App. 381 | Mo. Ct. App. | 1904
This is an action which was brought under the provisions of article 4, chapter 47, Eevised Statutes. The sheriff’s return indorsed on the writ is as follows:
“I do hereby certify that I executed the within writ and petition in Osage county, Missouri on the thirteenth day of February, 1903, by delivering a true copy of the within writ and a certified copy of the within petition thereto attached, to Leo Wegman whom I found in charge of the railway station at Freeburg in said county, and who represented himself to be the station agent there of the Chicago, Eock Island and Pacific Eailway Company and whom I served as such, and who was in charge of the business of the only railway passing through said town of Freeburg in said county.
“C. J. Lamb,
“Sheriff Osage County. Missouri.”
Defendant appeared — limiting its appearance— and moved the court to quash the return on the ground that it was wholly insufficient to give the court jurisdiction over defendant, which motion was by the court overruled and judgment subsequently was given by default declaring and enforcing the lien claimed by the plaintiff. Later on, the defendant sued out a writ of error and in that way brought the cause before us for review. The plaintiff filed a motion here asking that the sheriff be permitted to amend his return by adding thereto the words, “the president and other chief of
The defendant railway Company contends that it would be improper to allow the proposed amendment because “there is no statute of amendments applicable to proceeding’s in this court.” But in this the learned counsel for defendant are in error as may be seen by reference to sections 670, 672 and 673, Revised Statutes. The jurisdiction of this court is clearly conferred by these sections. They are to be found in every revision of our statute from 1835 to 1899. More than fifty years ago the Supreme Court in Muldron v. Bates, 5 Mo. 214, declared that the return of a sheriff might under said statutes be amended by the court in which the cause may be removed by writ of error or appeal. And this rule of practice has been steadily adhered to ever since. Holmes v. Hill, 19 Mo. 159; Bunton v. Adams, 65 Mo. App. l. c. 6; Crispen v. Hannovan, 86 Mo. l. c. 168; Weil v. Simmons, 66 Mo. 617. The amendment requested by plaintiff Holtschneider should, we think, be allowed.
But looking at the service as amended, is it not still subject to the objection defendant has lodged against it? Turning again to the statute and we there find two sections bearing upon this question; one of them section 995, providing that, “when any such summons shall be issued against any incorporated company, service on the president or other chief officer of such company, or, in his absence, by leaving a copy thereof at any business office of said company with the person having charge thereof, shall be deemed sufficient service:” and the other section 996, providing that, “on the return of such summons served as aforesaid the officer serving the same shall express in his return on whom, how and when .the same had been executed and if not on the chief officer he shall express the absence of such officer or that he can not be found.”
No doubt it is true, as defendant contends, that the