Proctor v. Missouri, Kansas & Railway Co., 42 Mo. App. 124

Proctor v. Missouri, Kansas & Railway Co.

42 Mo. App. 124 | Mo. Ct. App. | 1890

Lead Opinion

Ellison, J.

Plaintiff instituted this action by filing the following petition:

‘ ‘ Bartley Proctor, Plaintiff, vs. “Missouri, Kansas and Texas Railway Company, a Corporation ; George A. Eddy and H. C. Cross, Receivers, Defendants.

. “Now at this day comes the plaintiff and for his amended petition, leave of court having been asked and obtained, states: That the Missouri, Kansas and Texas Railway Company is a corporation, incorporated according to law; that the defendants, George A. Eddy and H. C. Cross, are the receivers of the corporation, appointed as such by Judge David J. Brewer, Judge of the eighth circuit of the United States circuit court; and at the time hereinafter mentioned were operating such railway in the state of Missouri. Plaintiff further *129states that on or about the nineteenth day of February, 1889, he was in the employ of said defendant as a common laborer, and was under the control of the boss, whose duty it was to direct the plaintiff in and about his duties as said employe, as well as a number of other employes of said defendant; that on said day the said boss in the discharge of his duties ordered the said plaintiff, in company with his other colaborers, to proceed to Boonville, Cooper county, Missouri, for the purpose of loading on the cars of the defendant certain piling belonging to said defendant; that the plaintiff, together with certain other employes of said defendant, was assisting under the command of said boss, in loading said piling on said cars, and in loading said piling it was necessary to place from the ground to the car a railroad iron to be used as a skid in loading said piling; that tha said boss ordered the plaintiff with others of his colaborers to raise one of the iron rails from the ground and place one end on the defendant’s car ; that when said rail was so raised the plaintiff, acting under the order of sajd boss, thought that said rail was to be placed with one end on the car and other on the ground, as the rails were formerly placed, but that said boss negligently and carelessly ordered the colaborers of plaintiff to throw said rail to the ground without giving the said plaintiff warning. The plaintiff being on the opposite side of said rail from the other laborers, and through the negligence and carelessness of said boss in giving said order, the rail was thrown on the foot and ankle of said plaintiff, bruising and injuring the ankle of said plaintiff, by reason of which he, the said plaintiff, was sick and sore and lame for a period of two months and [unable to work and suffered great pain in body and mind, and was put to the expense of hiring a physician and surgeon, and the plaintiff lost two months from his labor, and the plaintiff still suffers, from said wound, caused from the negligence and carelessness of *130the defendant as aforesaid. Wherefore, the plaintiff says he has been damaged to the sum of one thousand ($1,000) dollars for which he asks judgment, together with costs of this suit.”

The process issued upon the original petition was as follows :

“ State oe Missouri, “ County of Howard.

In the Circuit Court.

“ The State of Missouri to the Sheriff of Howard County, Greeting:

“ We command you to summon the Missouri, Kansas and Texas Railway Company, George A. Eddy and H. C. Cross, receivers, if it be found in your county, to appear before our circuit court, to be holden within and for the county of Howard, at the court house, in the city of Fayette, in said county, on the first day of next-term thereof, to be begun and held on the first Monday in June next, A. D. 1889, then and there, before the judge of our said court, to answer the petition of Bartley Proctor; and have you then and there this writ, with the return of your action thereupon.

“Witness my hand as said clerk of said court, and the seal thereof. Done at office in Fayette, in the county aforesaid, on the fifteenth day of May, A. D. 1889. Hamp B. Watts,

•“Clerk.”

Sheriff’s return:

“Executed the within writ in the county ol Howard and state of Missouri on the twelfth day of May, 1889, by leaving a certified copy of the original summons together with a certified copy of the original petition thereto attached at a business office of the within-named defendant, with W. M. Robertson, the person having charge thereof, the president or other chief officer being absent from the county and could not be found in the county. J. C. Maupin,

“Sheriff Howard County, Missouri.”

*131At the June term, 1889, George A. Eddy and H. C. Cross, receivers, filed a motion to dismiss the action for want of jurisdiction of the court over them. The motion is in words and figures as follows:

“ Bartley Proctor,. Plaintiff, vs. “Missouri, Kansas and Texas Railway Company, George A. Eddy and H. C. Cross, Receivers, Defendants.

“Now come George A. Eddy and H. C. Cross, receivers, and, appearing solely for the purposes of this motion, move the court to dismiss this, cause as to them, for the following reason, to-wif : Because the court has no jurisdiction over the persons of these receivers to hear and determine this cause as against them.”

This motion was overruled and defendants; George A. Eddy and H. C. Cross, declining to further appear or to answer the cause, the case proceeded to trial. The attorneys for the receivers, being also attorneys for the railway company, appeared for the company and contested the case. The result of all the foregoing was the following judgment (after reciting the verdict): “It is, therefore, ordered and adjudged by the court that plaintiff have judgment against defendant, Missouri, Kansas and Texas Railway Company, a corporation; George A. Eddy and H. C. Cross, receivers, together with costs and charges in" this behalf laid out and expended, and that execution issue therefor.”

The receivers and the railway company have separately appealed to this court. .The controversy here for the receivers is that there was no jurisdiction over the person of the receivers because of no service on them, and that the motion to dismiss for that reason ought to have been sustained; and chat the petition does not state a cause of action. It is conceded that the service *132is good as it, or the suit, may be considered as against the corporation: and the point made by the receivers is, that jurisdiction can only be obtained over them by personal service, which cannot be had by service upon an agent. We are cited to the case of Heath v. Railroad, 83 Mo. 620, as sustaining this position. But since that case was decided it has been enacted by congress,. 24 United States Statutes, 554, that all receivers (in federal courts) shall operate the property under their charge according to the laws of the state where the property is situated in the same manner that the owner would be bound to do if in possession. . And that such receivers may be sued in courts of competent juris-' diction without previously obtaining leave of the court appointing them. Under this statute, it has been held that where service is had in such way as that it would have been good against the corporation before its property and business were placed in the hands of a receiver, it is sufficient, service to bring such receiver into court. Thus, by the statute of Arkansas, service might be had on a railway company by serving the “clerk or agent at any station,” and it was held that as the station agent became the agents of the receivers, and that the receiver should operate the road under the' law of the state through which it passed, service on the agent, as provided by the state, statute, was sufficient service on the receivers. Central Trust Co. v. Railroad, 40 Fed. Rep. 426. The effect of the federal statute as thus construed is, that service .may be had on the receiver’s agent in the manner such service would have been made had the corporation been sued before the receivership and its agent been served. The station agent in charge of the station is no longer the agent of the corporation. He is the agent of the receiver (Heath v. Railroad, 617, 625), and we are, therefore, better reconciled to the construction placed upon the federal statute, since in no cáse would it permit proceeding in this state without notice to the receiver personally, or through his *133agent who has charge of his business office. R. S. 1889, secs. 2526, 2527.

II. The objection that the petition does not state facts sufficient to constitute a cause of action is not insisted on in the brief of counsel. • We will say, nevertheless, that we are of the opinion it does state a cause of action.

That part of the objection that the suit is against the corporation and not against the receivers, or that it is against both the corporation and the receivers (as in the latter way it seems to have been treated by appellant’ s counsel in the lower court), will be disposed of by what follows. A perusal of the petition will show that it is against the receivers alone. The styling of the parties defendant does not necessarily disclose that it was intended thereby to make the corporation a party. The petition itself charges, “that the Missouri, Kansas and Texas Railroad Company is a corporation,” and “that the defendants, George A. Eddy and H. C. Cross are the receivers of the corporation, * * * and at the time hereinafter mentioned were operating such railway in the state of Missouri.” It is true that in after portions it speaks of the defendants in the singular, but, taken as an entire pleading, we are satisfied it is only against the receivers. The corporation contested the case in the lower court and has also appealed, as before stated; but we think its contest and its appeal, as though a party to the cause, was not necessary, as it was not a party defendant, and no judgment could be, or, in our opinion, has 'been, rendered against it.

The judgment is not as formal as it should be and is somewhat irregular. It should be amended so that it will stand against George A. Eddy and II. C. Cross as receivers of the Missouri, Kansas and Texas Railway Company, to be satisfied out of the property and assets of said company in charge and possession of such receivers. Combs v. Smith, 78 Mo. 32; Ranney v. Thomas, 45 Mo. 111; State v. Maulsby, 53 Mo. 500.

*134The cause will be remanded with directions ,to so correct the judgment, and, corrected, it will stand affirmed.

All concur.

Rehearing

ON MOTION POE. EEHEAEING.

Conceding- that the sheriff understood from the command of the summons that he was to make service on the railway corporation as contended by counsel; and conceding further, that it is apparent from his return that he understood that he had made service on the corporation, yet, if it nevertheless be a fact that he has served the receivers, by serving their agent in Howard county, of what avail is his misunderstanding? The facts are that the return shows that he whom the law says is the agent of the receivers has been served, and this is sufficient. We are willing to ' admit that there has been more indefiniteness and looseness in the proceeding from the beginning than should have been ; but we are of the opinion that we have disposed of the case in a way which is justified by the law, and which subserves the ends of justice and, therefore, deny the motion.