88 S.W.2d 342 | Mo. | 1935
Prohibition to restrain respondent judges from entertaining further jurisdiction in an action brought in the Circuit Court of the City of St. Louis by one John W. Cannon, a resident of Tennessee, as plaintiff, and against relator as defendant, wherein plaintiff seeks to recover damages for personal injuries alleged to have been sustained while a passenger on one of relator's trains in the State of Tennessee. Relator here, by motion to quash the sheriff's return (appearing specially and for the limited purpose thereof), challenged the jurisdiction of the Circuit Court of the City of St. Louis over its person, and upon that motion being overruled, applied to this court for a writ of prohibition. Our preliminary rule issued, to which respondents made return, admitting, either expressly or by failure to deny, all the facts pleaded in relator's petition. The return also sets up a memorandum made and filed in said cause by one of the respondents, Judge Hall, setting forth his reasons for overruling the pleading challenging respondents' jurisdiction. Upon the filing of such return, relator filed a motion for judgment on the pleadings. The facts are not in dispute, and the issue is one of law. We have not been favored with a brief on behalf of respondents.
Under the pleadings, it stands admitted that relator is a Tennessee railroad corporation, and that its tracks and lines of railway are located in the states of Tennessee, Kentucky, Alabama and Georgia, and its railway system is operated wholly within those states, in which it engages in the transportation of freight and passengers in interstate commerce. No part of its railway runs into, through or traverses any part of the State of Missouri; it does not operate any engines, tracks or cars in the State of Missouri; it has never been admitted to do business in Missouri, nor has it consented to be sued therein, nor has it ever done any business in the State of Missouri, other than soliciting freight and passenger traffic for transportation in interstate commerce over its lines in other states, and for that limited purpose maintains an office in St. Louis. At the time in controversy, one J.V. McCarty, an agent of relator, was in charge of said office. *1232
Summons was issued in said cause, to which the sheriff of the city of St. Louis made return (omitting signatures) as follows:
"Served this writ in the City of St. Louis, Missouri, on the within named defendant, the Nashville, Chattanooga St. Louis Railway (a corporation), this 18 day of Mar., 1933, by delivering a copy of the writ and petition as furnished by the Clerk to J.V. McCarty, Genl. Agt. of the said defendant corporation, he being in said defendant's usual business office and in charge thereof. The president or other chief officer of said defendant could not be found in the City of St. Louis at the time of service."
Section 728, Revised Statutes 1929 (Sec. 728, Mo. Stat. Ann., p. 947), specifying the manner and conditions under which personal service of summons may be obtained upon a foreign corporation, provides: "Where the defendant is a corporation . . . organized under the laws of any other state . . . and having an office and doing business in this state," a summons shall be executed "by delivering a copy of the writ and petition to any officer or agent of such corporation or company in charge of any office or place of business . . . and when had in conformity with this subdivision, shall be deemed personal service against such corporation and authorize the rendition of a general judgment against it."
Relator relies on and invokes here, as it did in the court below, Section 8, Article I of the Constitution of the United States, and Section 1 of the Fourteenth Amendment, as defeating the jurisdiction of the circuit court, and also attempts to raise the constitutionality of Section 728, supra, because violative of the same provisions. The latter question may be brushed aside as not necessary to a decision of the case. The real, and what amounts to the sole question, in this case grows out of respondents' contention with respect to the return of the sheriff. Their averments in that connection being:
"Respondents further state that said return of the Sheriff is regular on its face and sufficient in all things, and that by virtue of said return these relators have acquired and are entitled to retain jurisdiction of said cause and proceed with the same to a trial and final adjudication."
The memorandum referred to shows that the judge, in overruling relator's amended motion to quash, did so "without prejudice," and on the theory that a "motion to quash certainly cannot reach a return which is regular on its face," and so remitted relator to its remedy of coupling its plea to the jurisdiction in an answer on the merits of the case, the approved practice. [Newcomb v. Railroad,
The case at bar comes squarely within the rule announced in State ex rel. v. Rutledge,
Furthermore, we are bound by the rulings of the Supreme Court of the United States, which deny the right to apply a local rule of practice so as to defeat the plain assertion of a Federal right, such as in the case at bar, which is secured under the Constitution. Illustrative of that doctrine is Davis, Director General, v. Wechsler,
It follows that our preliminary rule is prohibition should be made absolute, and it is so ordered. All concur.