49 S.W.2d 68 | Mo. | 1932
Lead Opinion
The plaintiff filed her petition in the office of the clerk of the Circuit Court of Jasper County charging that defendant had breached a written agreement, therein set out, to plaintiff's damage in the sum of $9100 for which amount she asked judgment. Thereupon the clerk of said court issued a summons directed to the "sheriff of any county." The return endorsed upon the summons shows it was served upon defendant in the city of St. Louis by the sheriff of that city. Defendant appeared specially and limiting his appearance to that purpose moved to quash the summons and the return on the ground, that the clerk of the Circuit Court of Jasper County was without authority to issue the summons directed to the sheriff of "any county;" that the sheriff of the city of St. Louis was without authority to serve said summons on the defendant in the city of St. Louis and that such "attempted service" did not give the court jurisdiction of the person of the defendant. The court sustained the motion and from the judgment quashing the return and service the plaintiff appealed.
Appellant says that the motion to quash is not the proper and appropriate method to raise the question of the court's jurisdiction of the person of defendant. This is a personal action against a sole defendant "instituted by summons" (Sec. 720, R.S. 1929) and defendant's motion challenges the authority of the clerk of the Circuit Court of Jasper County to issue the summons to another county and the validity of service upon defendant in the city of St. Louis by the sheriff of that city. As the direction of the summons and the time, place and manner of service thereof appears upon the face of the summons and the return, the sufficiency of the service to confer jurisdiction of the person of defendant was, we think, properly raised by the motion to quash. [Newcomb v. Railroad Co.,
The sole question then presented by the motion to quash is whether in an action of this character, in personam, "instituted by summons" (Sec. 720, R.S. 1929) against a sole defendant, the court acquires *1104 jurisdiction of the person of defendant by service of summons upon him in a county other than the county of venue.
"In this State, by one general system our Legislature has provided for the venue of all civil actions" and "provided for every contingency as to the bringing of suits." [Coleman v. Lucksinger,
"Suits instituted by summons shall, except as otherwise provided by law, be brought: First, when the defendant is a resident of the state, either in the county within which the defendant resides, or in the county within which the plaintiff resides and the defendant may be found; second, when there are several defendants, and they reside in different counties, the suit may be brought in any such county; third, when there are several defendants, some residents and others non-residents of the state, suit may be brought in any county in this state in which any defendant resides; fourth, when all the defendants are non-residents of the state, suit may be brought in any county in this state; fifth, any action, local or transitory, in which any county shall be plaintiff, may be commenced and prosecuted to final judgment in the county in which the defendant or defendants reside, or in the county suing and where the defendants, or one of them may be found."
It was in effect held in Coleman v. Lucksinger, supra, that the provision, in the foregoing section, "except as otherwise provided by law" means except as otherwise provided by statute. [City of Kirkwood v. Handlan,
We find no statutory provision authorizing the issuance of summons to, and service of same in, a county other than that of the venue, in a case such as this nor does appellant cite, or claim such authority exists by virtue of, any specific statute. Appellant argues that it must be presumed in this case that the venue is properly laid and that defendant is a resident of Jasper County and therefore the implication is that the summons issued out of the circuit court of that county could be served upon defendant in any county in this State where he might be found and thereby confer jurisdiction of his person upon the court. This action being in personam against a sole defendant we think the provision of Section 720, supra, fixing the venue must be held to contemplate and require the issuance of summons to, and service thereof in, Jasper County and does not permit the implication which appellant makes. There being no statute, so authorizing, we hold that the clerk had no power to issue the summons to another county nor did the sheriff of the city of St. Louis have authority to execute same in the city of St. Louis. The circuit court properly sustained the motion to quash the service and its judgment is therefore affirmed. Sturgis and Hyde, CC., concur.
Addendum
The foregoing opinion by FERGUSON, C., is adopted as the opinion of the court. All of the judges concur. *1107