Regent Realty Co. v. Armour Packing Co., 112 Mo. App. 271

112 Mo. App. 271 | Mo. Ct. App. | 1905

BLAND, P. J.

(after stating the facts). — Plaintiff in error makes three points; first, that the service of summons upon a resident agent of a foreign corporation is constructive service; second, that constructive service so made is not conclusive on the corporation; third, that the return of the officer is susceptible of two rational interpretations and for this reason is irregular and insufficient to confer jurisdiction on the court.

The first point is conceded by the defendant in error.

In support of its second point, plaintiff in error cites the following authorities: Wheeler v. Railroad, 24 Barb. 414; Mineral Point Railroad Co. v. Keep, 22 Ill. 9; Forrest v. Railway, 47 Fed. Rep. 1; American Bell Telephone Co. v. Pan Electric Telephone Co., 28 Fed. Rep. 625.

In the Wheeler case it was held that the defendant corporation might contest the return of the officer by showing that it had an officer upon whom service under the law should have been made, but upon whom it was not made. In the Mineral Point Railroad case, the Illinois Supreme Court held that the defendant corporation might show that A, upon whom service was made as the station agent of defendant ,was in fact not its station agent. In the Forrest case it was held that the certificate of a sheriff, that service had been made upon a person named as agent of the defendant corporation, is not conclusive that such a person was an agent and that the same might be contradicted, tried and determined as any other question of fact upon an issue raised by special plea to the jurisdiction. The question decided in the American Bell Telephone case has no bearing on the point under consideration.

To the contrary defendant in error cites the following Missouri cases: Stewart v. Stringer 41 Mo. l. c. 104; Heath v. Railway, 83 Mo. 617; Newcomb v. Railroad, 182 Mo. 687; Smoot v. Judd, 83 S. W. (Mo.) 481; The State to use v. O’Neil, 4 Mo. App. 221.

In the Stewart case the return of the ‘sheriff to the summons was constructive but is was irregular on its face. In respect to the right to contradict the return, Wagner, J., said: “The courts of some of the States have held that a sheriff’s return is merely prima facie evidence of the facts therein stated; but the law is firmly settled in this State that a defendant cannot controvert the truth of a sheriff’s return. If the return of a sheriff to process is regular on its face, it is conclusive -upon the parties to the suit, and the remedy for the -party injured is an action against the sheriff for a false return.”

In the Heath case, on a motion to quash an execution issued on a judgment by default, the defendant corporation offered to contradict, the return of the officer to the summons, which recited service upon an agent of defendant, by showing that all its property had been taken from its managment and turned over to a receiver by order of a United States Circuit Court, and that at the time of the service of the summons it had no agents, servants or employees in this State. In respect to this offer, the court, at page 623, said: “The rule of law prevailing in this State regards the return by an officer of the fact'and mode of service of process, when appearing in due form of law, as conclusive upon the parties to the record in all proceedings, except an action against the officer for a false return.” ■

In the Newcomb case the action was against a foreign corporation. The summons was served by the sheriff upon a resident of this State, stated in the return to be the agent of the defendant corporation. On a plea to the jurisdiction it was held; “The statements in the return of the sheriff, showing service of the summons on the agent of defendant, are, for the purposes of the suit, conclusive on the parties to it,” and that affidavits offered by the defendant- to contradict the statements in the return should have been ignored. In the case of State to use v. O’Neil, a like ruling was made.

In the Smoot case, Marshall, J., at page 484, said: “Ever since the decision of this court in Hallowell v. Page, 24 Mo. 590, the law has been uniformily declared in this State to be that The return of a sheriff on process regular on its face, and showing the fact and mode of service, is conclusive upon the parties to the suit. Its truth can be controverted only in a direct action against the sheriff for false return.’ [Heath v. Railroad, 83 Mo. 617; Decker v. Armstrong, 87 Mo. 316; Phillips v. Evans, 64 Mo. loc. cit. 23; State ex rel, v. Finn, 100 Mo. 429, 13 S. W. 712; Delinger's Adm’r v. Higgins, 26 Mo. loc. cit. 183; McDonald v. Leewright, 31 Mo. 29, 77 Am. Dec. 631; Reeves v. Reeves, 33 Mo. 28; Stewart v. Stringer, 41 Mo. loc. cit. 404, 97 Am. Dec. 278; Jeffries v. Wright, 51 Mo. 215; Magraw v. Foster, 54 Mo. 258; Anthony, to Use, etc. v. Barthlow, 69 Mo. loc. cit. 194; Bank v. Suman’s Adm’r, 79 Mo. loc. cit. 532 (in this case it was held that parol evidence was inadmissible, in aid or support of the return, to show service in fact, though not in the manner set out in the return, and was admissible against the return only in a suit against the sheriff for a false return); Bank v. Gilpin, 105 Mo. loc. cit. 23, 16 S. W. 524; Feurt v. Caster, 174 Mo. loc. cit. 297, 73 S. W. 576.]”

Whatever may be the law elsewhere, we think the foregoing Missouri decisions have firmly established the law here to be that the return of an officer to process, whether the service be personal or constructive, is conclusive on the parties to the record and as to all proceedings in the same cause, and that evidence dehors the record is not admissible to contradict the return, except in an action against an officer for a false return; and we rule the second point against the plaintiff in error.

As supporting his third point, plaintiff in error invokes the rule that returns of service of process by an officer must be strictly construed. What is meant by strict construction in this regard is that the return cannot be aided by presumptions or intendments, that nothing can be presumed in favor of the return or read into' it by intendment, that the return must show on its face that every requisite of the statute has been complied with. [Gamasch v. Smythe, 60 Mo. App. 161; Harness v. Cravens, 126 Mo. 233.]

In Davis v. Jacksonville Southeastern Line, 126 Mo. l. c. 76, the court, speaking of the construction of the terms of an officer’s return to process said: “The return should receive a reasonable and natural interpretation. It must be fairly construed and effect be given to its plain intent and meaning.” With this understanding of the rale to be applied to the construction of the return under review, the question arises, is it susceptible of two rational constructions? If it is, then it is irregular and the motion to quash should have been sustained on account of the irregularity. If the return has a double meaning its duplicity is caused by the insertion of the words “(Now Armour & Co.) (a corporation).” To the ordinary mind these words would indicate that the officer making the return was of the opinion or had been informed that the Armour Packing Company bad been absorbed by and merged into another corporation known as tbe Armour Company. But it was no part of bis duty to communicate tbis fact, if it was a fact, to tbe court through tbe medium óf bis return to tbe writ; nor is tbe statement in tbe return any evidence whatever of tbe fact that tbe defendant company has been merged into tbe Armour Company. These words are therefore of no validity whatever, nor do they have any meaning in tbe return, nor do they serve to explain or qualify tbe return. If tbe words bad been left out tbe return would be regular and in strict compliance with tbe statute, therefore, we think they should be regarded as surplusage (State v. Watson, 141 Mo. 338) and tbe return interpreted as if they were not in it. If tbis be done plaintiff in error concedes tbe return to be sufficient. We rule plaintiff in error’s third point against him which leads to an affirmance of- tbe judgment.

Tbe judgment is affirmed.

All concur..