*1 426
аlthough, belonged or, presume it evi- defendant, we did. right authority give had dence does not disclose what nothing plaintiff possession, him, to show or to take it from as there De- agent of the owner. defendant was either the owner or days, stay fendant did farm and was seen around the for four or five among passing through fields, the cattle but the evidence is possession, not sufficient show that the was ousted only in .possession. most, pos- that defendant took At defendant was part premises days, session of a after which, four or five he did farm, not undertake to exerсise control over the nor was he possession premises of the at the time of the institution this suit. (and
In occupancy is nothing absence of or detention there anything pretended occupancy show more than a or detention of the possession nothing premises), of the defendant’s conduct amounted to trespass. Lynch, App. more than a v. It fol- 456.] [Roberts correct, judgment lows that the trial court’s action was Danes, J., Becker, J., P. concur. affirmed. Corpora ex rel. Macon Missouri George Judge E. Mix, tion, Relator, Circuit Court Respondent. City оf (2d) * 7 S. W. Louis, Missouri,
290. Opinion Appeals. Louis June Court of filed 1928. *2 References; 44; Juris-Cyc. 5CJ, *Corpus Assignments, p. 916, n. Bills Notes, 68; 78; 17; 8CJ, p. 98, p. 79; 820, 853, p. 302, p. 304, p. n. n. n. n. 71; 80; 5; Corporations, 14aCJ, p. 1406, 15CJ, p. Courts, p. n. n. 84. n. n. Bryan, Williams c6 for relator. Cave *3 Simpson
Jeffries, respondent. & Plummer for SUTTON, proceeding prohibition. C.—This is Upon filing petition, provisional writ of this court issued. The cause respondent’s been submitted here peti- demurrer *4 tion. relator, charges Creamery Company, Macon in its here day August, 1927,
that on the 12th of there was filed in the circuit' Louis, city Louis, by the National Bank of St. petition, (omitting caption which signature) and as follows, to-wit:
“Now plaintiff cоmes the in the above-entitled and for its' cause of action states that it and was at all the times herein men-. banking corporation Boned a duly organized existing and under and, by virtue of the. laws of the United America, princi-' States of with its pal place officeand of in the St. Louis, Missouri; that defendants are corporations, duly organized both existing and accord- ing law; to Creamery .defendant Macon Company has-its place office and business in Macon, Missouri, Kroger and Grocery defendant and Company. and business in principal Missouri office hаs its Louis, Missouri. St. 6, August 1927, states that on about “Plaintiff and goods, wares Baking Company purchased certain and Creamery agreed Company and Macon from defendant merchandise by honoring sight drawn drafts pay therefor drawee; Creamery Company as that the said drafts were on it upon paid for agreed to be drawn for amounts to be as paid were to be a satisfaction of merchandise; that the said drafts purchase existing of said mer- on account the indebtedness paid upon presentation sight and of said chandise, were to drafts. pursuant undеrstanding, ar-
“Plaintiff to said further states agreement defendants, and between defendant Macon rangement August Cmnnery 6, 1927, sight drew draft Company, on or about 6, Macon, August 1927, in the sum of three Missouri, dated thousand ($3933), payable thirty-three dollars nine hundred order Macon, payee, Company upon as Fanners Trust Baking Company, Company, Grocery and care American Trust therein; Louis, Missouri, August-, drawee that on or about as Creamery Company duly 1927, defendant Macon endorsed said draft assigned and transferred the same for sold, value to Farmers therein; Macon, payeе Company duty copy that a Trust verified attached, marked A.’ of said draft is hereto ‘Exhibit pursuant understanding, arrangement agreement to said “That defendants, Creamery Company, between defendant Macon on or August sight Macon, drew its draft dated Missouri, about August sum 9, 1927, eighty- of three thousand four hundred eight payable ($3488.40'), dollars the order of Farmers 40/100 Macon, payee, Kroger Grocery Trust Company American care of Trust Company, therein; August-, that on or about 1.927, as drawee de- Creamery Company duty endorsed fendant draft sold, for and transferred same value to the Farmers assigned therein; Company Macon, payee duty that a copy Trust verified attached marked B.’ draft is hereto ‘Exhibit of said that both of said “Plaintiff further states above-mentioned drafts assigned, sold, duty endorsed, transferred and delivered, payee Macon, Trust by the Farmers value, therein, thereupon in due course became plaintiff; the holder drafts, value, and has ever since of said continued to and owner thereof. be the owner holder defendant Macon further states “Plaintiff *5 of its contract with all of the terms with defendant duly complied Baking Cоmpany with Grocery reference to and furnish- agreed to be furnished merchandise under goods and said ing goods all duly furnished arrangement, and above-mentioned above-men- and value stated of the amounts and merchandise Baking Com- and sight drafts; that defendant tioned being in as goods merchandise accepted said and duly all of pany and re- contract, and now has with said above-mentioned accordance thereof. possession as owner in its tains same immediately receipt thereof after the “Plaintiff further states presented to bе or caused presented course, and in due i>laintiff Baking Kroger Grocery and defendant sight drafts above-mentioned to by defendant that was advised said Company payment, and and that if said drafts received goods therein had not been called for goods arrived until the period of time held for short would be paid. same would be defendant, goods were received “Plaintiff states that further prior to Baking as heretofore stated
Kroger Grocery and Company alleged. Farmers Trust as hereinafter the failure of the coming is advised that upon informаtion “Plaintiff about the- n day August, 1927, Company the Farmers Trust placed in the hands of the Commissioner Macon, Missouri, was charge is now in of said bank the State of who Finance of by. receipt after the arrival and defendant purpose; Kroger Grocery goods above-mentioned and again pre- drafts merchandise, and the said above-mentioned pay payment, same, it for but said defendant refused to sented to requested stating therefor that had been reason defendant Creamery Company to dishonor Macon said drafts and to refuse to money remit the amounts of called pay the same and to for therein Creamery Company direct, pay the said and Macon to refuse to drafts; pursuant holder owner of said that under and same to the and arrangements, agreements contract, to the above-mentioned and exist- ing Kroger Grocery them, Baking Company and between accept obligated pay the face amount of the drafts hereto- agreement informed fore described had its said alleged. agreed pay the as above had same purpose for the рrotecting
“Plaintiff further states that the said Creamery Company against any loss on account of its de- posits in and with said Farmers Trust at the time of the closing thereof, notwithstanding agreements and undertak- ings, request defendant, at the of Macon Company ac- quiesced by Kroger Grocery Baking Company, agreed to- Kroger Grocery gether that defendant Company would pay same, dishonor drafts and refuse to pay dishonor of said drafts said defendant would the amount thereof Creamery Company, to defendant Macon and virtue of said understanding agrеement between parties, the said Creamery Company that the knew drawee in said drafts would
é'iVJh Company Creamery defendant and said the same honor not payment presentment for of said notice of to not entitled Grocery Baking their dis- and Kroger to defendant drafts upon parties would look to the other the holder notice, and honor thereof. payment said drafts things by reason of the matters and states that further “Plaintiff agreement existing by between alleged virtue and heretofore defendants, given be heretofore mentioned to said drаfts payment, in full by thereto satisfaction and parties received and mentioned; for merchandise heretofore discharge the claims delivery purchase and drafts thereof and said the' execution plaintiff assignment equitable plaintiff constituted an Creamery Company against existing of the Macon on behalf claims Baking Company Grocery and for the merchandise Kroger hex’e- plaintiff upon the purchase became and said mentioned tofore assignee money upon to due said claims drafts, exxtitled from Kroger Grocery Bаking Company. “Plaintiff further states that and Bak- yet paid defendant Macon ing has Com- amounts, threatening pany but above-mentioned make said plaintiff payment payment has that said stated to would be made immediately. plain, adequate coinplete remedy
“Plaintiff states that Kroger Grocery law aixclunless defendant and Baking Compaixy at enjoined making payments from said defendaxxt Macon Cream- deprived ery Company will be rights substantial money collecting Kroger Grocery from defendant will irreparably injured that it be damaged by axxd thereоf. reason plaintiff prays judgment agaiixst
“Wherefore defendants in the twenty-one sum of thousand four seveix hundred dollars 40/100 ($7421.40) ; Kroger Grocery that defendant aixd Company be eixjoined paying any and restrained from money dxxe drafts, above-mentioned or for the represented merchandise thereby, to- defendant Creamery Compaixy, and that defendant Macon Creamery Company enjoined and restrained from accepting or receiving the same from defendant Grocery and Baking Company until the further order 'of this for such other judgments, orders and premises decrees as to the court shall seem meet proper.” That thereafter said cause was transferred to Division No. court, presided, circuit which is over the Honorable Mores Hart- - - mann.- n -That, day on said 12th August,' 1S'27,- a summons'
the clerk of said circuit court directed to the sheriff of Macon countv. relator, summons which sum- sheriff to commanding said parts) is as follows: and formal signature (omitting mons Creamery Company, cor- you summon Macon command “Wo first judges our circuit court on the appear before poration, to thereof, be held in аt day next term Monday next, first of October then city, the courthouse *7 National complaint of the of St. the and there to answer petition; in the annexed and have Louis, corporation, a as set forth you writ.” then and there this August, 1927, in the said sheriff made return to
That thereafter signature writ, (omitting parts) and formal is as said which follows: (cid:127) Macon; hereby certify county “I of at the of August, suit, 15th A. D. in the within-named T day on this of process defendant, Creamery on witliin-named the Macon served the being Company, corporation, a the first served defendant herein. certify, I in “And further that аt said time and at and the business company, said defendant hereinafter described, office of I executed company, defendant, by delivering said service said on at and said in duly copy original a business office certified of the writ therein and the copy together of attached hereof with duly hereto a copy certified petition original of the and of the attached copy hereto thereof to Rudolph Miller, Sr., who then and ever since has been presi- the of the company, defendant, creamery corporation dent said a then and having city ever since in the in Macon the of Macon afore- business process its said officewhere said aforesaid, served say. office,usually that is to the business had and maintained it in usual, ordinary transaction of its customary business, with agent, Miller, its Rudolph Sr., duly charge thereof and charge business officeand thereof at time of said service of said process as aforesaid.” October, That thereafter 1927, the a plea filed jurisdiction court, of said (omitting circuit which signa- caption and ture) is as follows: “.Now Creamery comes the Company, Macon one of the defendants in the cause, above-entitled and, specially entering appearance for purpose (cid:127)this purpose only, this any denies this has jurisdiction of this this cause and moves the court quash the herein, writ issued for reasons: it appears “1. That petition face on of the this court jurisdiction no this defendant, Macon Company, and says for reason therefor this defendant that it appears on the petition face of herein that this corporation defendant is with its officeand business Macon, in the State Missouri, city and not within the Louis, Missouri. That “2. it appears on the face of herein that said petition states no against cause whatever action this defendant’s codefendant, Grocery and
434- petition that states face of the on appears That it
“3. and the codefendant this defendant of action joint cause Company. this the writ appears from nevertheless “4. That it that such writ on this defendant of service return thereon county and this defend- served sheriff was issued city of St. Louis. county and not ant particular de- premises, this in сonsideration “Wherefore, sheriff return herein quash the court to fendant moves show this not sufficient to for the reason this defendant defendant, reason this over court has doing defendant has an office that this not show that it does served within or was Louis in the plaintiff’s peti- court to dismiss prays the jurisdiction.” want tion day December, 12th and on the Honor- thereafter, That court, Judge of said circuit overruled said Hartmann, able Moses jurisdiction. plea day January, 1928, and on 3rd the Honor- thereafter',
That *8 No. 4 Hartmann was transferred to Division of said able Moses George E. resрondent, the Honorable court and the circuit Mix, 2No. of court. assigned to Division said said the-day January, 1928, of thereafter, and on relator That the a and set in said cause motion vacate aside the order of filed said n day December, 12th of made entered on the over- court and jurisdiction the ruling’ plea court, the relator to of said the of which day court, 3rd the on the of February, said motion was overruled. proceedings instituted and
That the followed as aforesaid are jurisdiction the said beyond the of for the following circuit court reasons: petition the the appears 1. on face of filed in the It case in said court, City the Bank of
circuit wherein National St. Louis is Kroger Grocery and this defendants, petitioner corporation that a are is with county of in the officeand business of Macon, its city Louis, oP and not within the of St. Missouri. petition on of appears
2. That the face the in said cause that no Kroger against Grocery 'the cause of action Company is stated. petition of appears That it oh the face said joint 3. that no cause against petitionеr
of action this Baking- Company is stated. That it writ in appears
4. from the said cause and the return petitioner that such thereon service writ was issued to the upon petitioner served in sheriff Macon (cid:127) city in and not of St. Louis.-
435 George judge E. of the Mix, circuit respondent, That the has aforesaid he Missouri, has ruled as that city Louis," St. relator, plea juris- a although person jurisdiction over juris- continuing cause, and he to exercise diction was filed jurisdiction person excess of of relator diction over the city Louis, circuit authority court of conferred Missouri, by the laws of the State Missouri. jurisdiction respondent’s person
Counsel endeavor to sustain (1) grounds, petition to-wit: That of the relator on several joint respondent pending before states a cause of action the cause cause; (2) against and his codefendant that the cause relator against city pleaded of action accrued cause Louis; (3) presumed it will an that relator had office and customary of St. Louis for the its usual busi- transaction respondent jurisdiction ness; (4) power deter- petition mine not states a of action, whether or cause where the accrued, cause and whether or not ah of action relator has officefor customary usual and transaction determination is subject pro- and that such review hibition. joint question petition if the
There states cause of action against respondent codefendant, relator and his got ex relator. rel. Columbia National [State Kansas Davis (Mo.), clear, v. 284 S. It is however, W. 464.] joint against does not state a cause of action relator and Indeed, his not state does codefendant. action at all 913, 918, 920, 1919; said codefendant. and 921, R. S. [Secs. Yeates, 623; 69 35 Duff, Clements v. Mo. Rousch 312; Kellogg Mo. v. Bank, App. 288, v. 176 162 643; Citizens Mo. W. S. Albers Com 173; Bank, mercial Mo. Kimball v. Donald, 577; Ford v. 37 Mo. Angelrodt, 50.] acceptance It is not an contended there was *9 Company by of the drafts drawn the any relator or that cause of ac- against Kroger Company
tion arose the in City favor the National theory Bank acceptance on the an the drafts the Company. the equitable But contention is that an assign- there was City ment to the National Bank of goods relator’s account fоr sold the Kroger Company. the It is settled judicial both statute and bill exchange decision that a operate itself does not assign- anas unless, ment, and that the drawee is not liable on the bill and until acceptance accepts same, and writing lie the the signed by must be drawee, nothing the can peculiar and we see the facts to this case Kroger to render liable to the the National City Bank on theory assignment. the anof pleaded by
It also of action is clear that the cause the City National against Bank did city relator not accrue the The Louis.
436 money in the pay not contract exchange does of a bill-of drawer guarantees acceptance and only drawn, but which it
place on
agrees, in default of such
drawee, and
by the
place
in that
payment
principal and
the holder
reimburse
notice, to
upon due
payment,
drawn,
cause of action
hill
where the
place
at the
damages
place.
at
accrues
against
the drawer
the holder
in favor
v.
Bank
252; Hibernia National
Y.
189
Rogers,
N.
[Amsinck
331; 8
Exchange,
C. J.
sec.
367; Story on Bills of
Lacombe, N. Y.
Gibbs,
12;
6 Ala. Wood v.
Mobile,
at
Bank
v. Branch
98; Crawford
But alleges National relator had its office and of business iñ- Macon county, and the record that no shows summons was issued to the of St. Lоuis city, for service on respondent contends will presumed that it he that relator has an in said office for the business, transaction customary of its usual and juris- and that his 3180, diction must he sustained under section 393.9, Revised Statutes provides which against corporations follows: “Suits shall he com- menced either in where the cause action accrued . . . or in any county corporations Avbere such shall usually keep have or agent an office or for the transaction of customary usual their ’’ business. Section Revised Statutes pari AA’hieh is in materia with provides section 1380, as follows: any “When such summons shall he any incorporated company, president service on the or other- chief officer of such com- pany, or, in absence, by his leaving copy thereof at office of said company Avith having charge thereof, shall *10 be deemed a service; corporation sufficient and if have no business office in the county where suit is brought, if person or no be in found in be chief cannot found officer president or charge thereof, and the any issued, sheriff of directed to be county, a shall summons such president or chief any State, where the other State, county in this or or where office may found, or company reside or be officer of such the service there- company, and may kept of such place of business be of shall the same as above.” be issu- section that, provisions of will observed under the
It be county not authorized unless relator was ance of summons to Macon charge person found in no was Louis, had no in St. business office or be in president not found thereof, and the or chief officer could city, per- in rеspondent’s so order sustain that (1) presumptions, to-wit, indulge son of the relator must three we (2) city, in said was that the relator had there a business office charge upon in office person no of such whom service could business had, (3) president be chief officer could be found not in city. fact, If it a without the established as even aid of in presumption, Louis, we that the relator had business office do how presumption person not see follow ivas would that there no charge upon had. such whom service could be It office .would seem presumption drawn, that the natural be and reasonable any showing- contrary, absence of would be that there some was person charge . upon service be such office whom could had. Darby (Mo. It held in App.), v. Weber Implement proper S. W. where the record showed that the corporation a. having principal its office Louis, might reasonably inferred had be that the defendant no business office county, in Stoddard In brought. present where the suit was case expressly of the National avers that office and Macon, and the return of the officer to the summons shows president iras served county. summons on the of relator in that Sure ty, in ground this state of no reasonably presume the record there is that the relator had a business officein the and that person charge there no ivas of such office whom service could be had.
Moreover, clearly contemplates the statute that where a defendant corporation has a business officein brought, where suit is person then no charge office, Avasfound -of such and that the president or chief officer could be found county, in such must appear by the return of an officer to a county, summons issued such to authorize the issuance of a county. summons to another This is obvious language statute, from the to-Avit, person “if n fouud thereof, charge president or chief officer cannot be found county.” eAddently in such This means if no “be charge found” in office, president of such if or chief officer “cannot be an county, such found” in process officer armed Avith
438 person, president, such find serve charged duty the with no affirmatively appears that present case it In the officer. or chief The St. Louis. the of for relator was issued whatever
summons
thereof in that
the
county, and
service
to Macon
of summons
issuance
jurisdiction
no
unauthorized, and conferred
county, was therefore
relator.
person of the
respondent
upon
over the
jurisdic
where
court has
the
respondent,
rule
The
invoked
defendant,
the
it has
subject-matter
person
the
of the
tion
petition
not the
erroneously
will,
if
whether or
determine,
power to
may
so
not
power to
determine
action,
a cause
states
ex
State.
well settled
by prohibition, is.
with
[Stаte
interfered
v. McDon
14,
191;
92 W.
Shubach
Stobie,
S.
v.
194
McNamee
Mo.
rel.
Scarritt,
v.
Hoffman
1020;
ex rel.
163,
179
78 S. W.
State
ald,
Mo.
293
Johnson,
v.
1026;
Fabrico
30 S. W.
State ex
331,
128 Mo.
rel.
(Mo.
v. Hartmann
844;
Bromschwig
239
ex rel.
S. W.
State
Mo.
apply
should
seems, too,
the same rule
App.), 300 W.
It
1054.]
S.
where
cause
power
determine
the
respect
the court to
with
the
the
accrued. But it must not be over
petition
action
stated
jurisdiction
presupposes
looked that
the existence of
the rule
subject-matter
person.
gives
It
no sanction to
view
and of the
appear
may
erroneously
jurisdiction
matters
determine
doing
upon
juris
ing
confer
itself
record,
oh the face of the
so
may
erroneously
petition
determine that the
diction. The court
against
residing
a
a
states
of action
cause
jurisdiction
brought
upon
order
itself
where
suit is
to confer
person
residing
process
of the
codefendant
and served with
jurisdiction
county.
may
upon itself
another
Nor
the court confer
cause,
by erroneously deciding
action
of such codefendant
that the
against
stated
such codefendant accrued
brought.
Bradley,
ex
193
where
suit is
rel. Jackson v.
[Stаte
33,
son Co. W. 868. S. In that ease summons issued was for to St. county, Charles and ivas returned Thereupon an non est. alias summons was issued to the city tried, was judgment where service had. cause was
n given plaintiff. introduced the trial was None of the evidence at preserved presumed exceptions. appeal in the bill of On county, the defendant had a office in St. to sustain Charles jurisdiction brought the court the suit Avas and tried. where authority sustaining That case affords no of re- spondent in the cause here. There no under revieAAr Avas trial оf the pending introduced, respondent, before no evidence Avas there Avas non for relator est return to a summons *12 respects brought. In these where -the suit Airas clearly distinguishable case Savings is case. from the 490, State ex rel. Gantt, Standard Fire Co. Insurance 203 S. point here, W. cited respondent, and relied on is not for foreign the.reason that.the that case was insurance company, specially provided service aaOiícIi section 6310, ReAdsed section, Statutes 1919. Under suits foreign companies, insurance must super- service be had on the State intendent department, 1192, providing of the insurance and section against ordinary service suits corporations, has no application.
It is respondent clear that the has no the relator in this case. The Commissioner therefore recommends that provisional prohibition writ of issued herein be made absolute. PER foregoing opinion Sutton, C., adopted CURIAM:—The opinion as the provisional writ prohibition court. ,Becker herein is accordingly Danes, made absolute. P. J., Pipper, JJ., concur. Indemnity L. Keeley, John Respondent, v. The Appellant. (2d) * 7 S. W. America, a Corporation, 434. Appeals. Opinion St. Louis Court of filed June 1928.