127 Mo. App. 248 | Mo. Ct. App. | 1907
Plaintiff’s amended petition contains the following:
“Now comes the plaintiff in the above-entitled cause, leave of court first had and obtained, and files this.her first amended petition.
“Plaintiff states that the defendant is a corporation, duly and legally incorporated, and operates a railroad existing from Cripple Creek, Colorado, to or near Canon City in the State of Colorado, on which line of railroad there is a station of defendant called Midway; that defendant so owned and operated its said railroad on the ninth day of October, 1906, and at all times hereinafter stated in this petition.”
Plaintiff then states that while riding as a passenger on said railroad in the State of Colorado, near said Midway Station, a collision occurred by which plaintiff was injured.
Attempted service ayus had in Montgomery county, Missouri, on the eighteenth day of April, 1907. The amended return of the sheriff is as follows:
“Now comes George E. Earnest, sheriff of Montgomery county, Missouri, Avith leave of court first had and obtained, and files his amended return as follows:
“Executed the Avithin writ in the county of Montgomery and State of Missouri on the eighteenth day of April, 1907, by delivering a copy of the Avrit and petition as furnished by Everett Barton, clerk of the
Defendant’s plea to the jurisdiction and motion to dismiss is as follows:
“Now comes the defendant herein and for the purpose of this motion only, denies that the court has or can have any jurisdiction of the defendant in this cause, and moves to quash the writ issued herein for the reason that it appears upon the face of the petition that the defendant is a corporation, organized, existing and operating solely within the State of Colorado', and is not operating its railroad and never did within the State of Missouri, and that neither has it an office in the State of Missouri, neither does it transact any business in the State of Missouri and has never entered the State of Missouri for the purpose of transacting any of its business, nor neither has the defendant an office, chief or otherwise in this State, or any agent or officer in charge of any office in this State, nor has it any agent in this State, nor has it ever had any agent or office in this State for the transaction of its business.
“2. Defendant further moves to quash the return of the sheriff herein, for the reason that it is not sufficient to show that the said circuit court of Montgomery county or any other court in Missouri has jurisdiction over the defendant, and for the reason that it does not show that defendant has an office or is doing-business in this State.
“3. . For the reason that it is shown that the de
In support of plaintiff’s plea, the affidavit of J. H. Waters was filed, and is substantially as follows:
That for several years last past he has been the general manager of the defendant corporation and has control over the employment and discharge of all agents and employees of the company; that the company always has been and is now a corporation organized, existing and doing business under the laws of the State of Colorado, and it does not now and never did transact business at any other place than in the State of Colorado, and transacted no business directly or indirectly outside of the State of Colorado, and that it never had any business in the State of Missouri, or any place of business, agent, agency, or any property in the State of Missouri; that an attorney in Missouri by correspondence made a claim against the defendant on account of alleged personal injuries by the plaintiff and that for the purpose of investigating the scope of said injuries and the physical condition of the plaintiff and for no other purpose whatever, the defendant company sent the said D. C. Scott to Wellsville to make said investigation, and the said D. C. Scott went there for that purpose solely and is not and was not an officer nor agent of the defendant company and had no authority to receive or accept service of summons in any action against the defendant, and had no authority further than to investigate the physical condition of the said plaintiff and report the same to the attorneys for the defendant.
The affidavit of D. C. Scott is substantially as follows :
That while engaged at the request of the defendant investigating the physical condition of the plaintiff, and
The court sustained the plea to its jurisdiction and dismissed the action at plaintiff’s cost. After an unavailing motion for new trial plaintiff appealed to this court. Plaintiff contends that the plea to the jurisdiction of the court and the affidavits in support thereof were a collateral attack upon the return of the sheriff to the summons issued in the cause and for that reason should have been rejected. We think the learned counsel for plaintiff is mistaken. The affidavits do not contradict the statement that D. C. Scott, to whom the summons was delivered as agent and employee of the defendant company, was in fact the agent and employee of the company, as stated in the return; nor do they deny the fact that service was had upon him; nor do they contradict the statement in the return, that defendant had no office or place of business in Montgomery county, Missouri, or in the State of Missouri, at which the writ could be served;-nor do they deny the statement in the return, that the president or other chief officer of defendant could not be found in Montgomery county at the time of the service of the Avrit. The plea to the jurisdiction called the attention of the court to, and the affidavits put the court in possession of facts not contradictory of the return of the sheriff, but in strict harmony therewith, and were presented to the court for the purpose of showing that, admitting the truth of the return, still the court acquired no jurisdiction over the person of defendant, and the question for decision is not that- the return of the sheriff was false but, admitting it to be true, did it confer jurisdiction over the person of. defendant? The question rests upon a proper construction of subdivision 4, section 570, Revised Statutes 1899, which reads as follows:
‘‘Where defendant is a corporation or joint-stock
In McNichol v. United States Mercantile Reporting Agency, 74 Mo. 457, it was held, in an able and exhaustive opinion by Judge Sherwood, that service of summons upon a non-resident corporation, having an office or doing business in the State, by leaving the summons with the agent of the corporation in charge of the office or place of business of the corporation in the State, gave the court jurisdiction over the person of the corporation and authorized the rendition of a personal judgment against it. The petition alleges the defendant is a non-resident of the State, and the sheriff’s return affirmatively states1 that defendant has no office in the State, but does not state that defendant was doing business in the State, therefore, if the return is sufficient to confer jurisdiction, it is so by reason of the provisions of the second clause of the fourth subdivision of the section. This clause does not expressly state that the officer, agent or employee upon whom service may be had shall be engaged in doing business in this State for the corporation. A private corporation, like a natural person, has a place of residence and like a natural person may transact business in States other than the one of its domicile, but unlike a natural person it does not, through its agents, officers or employees, carry its corpus about from place to place and from State to State for mere pleasure or recreation. Its functions
“The question as to what sort of business transactions by a foreign corporation within a State will justify the finding that it is engaged in business therein, and validate a service of process had upon its agent, was also elaborately considered in the case of United States v. Telephone Co., by Judge Jackson, reported in 29 Fed. 37-41. It was there held that a corporation must transact within the State some substantial part
We think the plea to the jurisdiction of the court was properly sustained, and affirm the judgment.