Schumacher Elevator Co. v. Springfield Elevator Co.

804 S.W.2d 42, 1991 Mo. App. LEXIS 233, 1991 WL 16162
CourtMissouri Court of Appeals
DecidedFebruary 13, 1991
DocketNo. 16923
StatusPublished
Cited by4 cases

This text of 804 S.W.2d 42 (Schumacher Elevator Co. v. Springfield Elevator Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schumacher Elevator Co. v. Springfield Elevator Co., 804 S.W.2d 42, 1991 Mo. App. LEXIS 233, 1991 WL 16162 (Mo. Ct. App. 1991).

Opinion

CROW, Judge.

Defendant Springfield Elevator Co., Inc. appeals from an order of the Circuit Court of Greene County, Missouri (“the Missouri court”), denying defendant’s motion to set aside the “registration” of a judgment of the Iowa District Court for Bremer County (“the Iowa court”) awarding plaintiff Schu-macher Elevator Co., Inc. $118,055.48 plus interest against defendant.

Defendant maintains the Iowa judgment is void and ineligible for full faith and credit in Missouri in that (a) defendant never received notice of the Iowa lawsuit, (b) the record of the Iowa court fails to demonstrate defendant was properly served with process or received the required notice of the Iowa suit, and (c) there were no allegations in plaintiffs pleadings in the Iowa court showing such court had “long arm” jurisdiction over defendant.

Plaintiffs petition was filed in the Iowa court June 6, 1989. It alleges plaintiff is an Iowa corporation whose principal place of business is in Bremer County, Iowa, and defendant “is a foreign corporation, whose address is 1213 N. Campbell, Springfield, Missouri 65802.” The petition further alleges (1) in March, 1986, defendant orally agreed to purchase from plaintiff, and plaintiff orally agreed to manufacture and deliver to defendant, four “traction passenger elevators,” (2) plaintiff manufactured said articles at its Bremer County, Iowa, facility, (3) said articles were delivered to defendant’s “job site in Springfield, Missouri,” at defehdanf s direction, (4) plaintiff performed all conditions of the contract on its part, and (5) defendant failed to complete payment of “the initial purchase price and finance charge.”

Iowa Code § 617.3 (1989), states:
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If a foreign corporation makes a contract with a resident of Iowa to be performed in whole or in part by either party in Iowa ... such acts shall be deemed to be doing business in Iowa by such foreign corporation for the purpose of service of process or original notice on such foreign corporation under this section, and, if the corporation does not have a registered agent ... in the state of Iowa, shall be deemed to constitute the appointment of the secretary of state of the state of Iowa to be its true and lawful attorney upon whom may be served all lawful process or original notice in actions or proceedings arising from or growing out of such contract. ... The making of the contract ... shall be deemed to be the agreement of such corporation ... that any process or original notice so served shall be of the same legal force and effect as if served personally upon such defendant within the state of Iowa. The term ‘resident of Iowa’ shall include any Iowa corporation ....
Service of such process or original notice shall be made (1) by filing duplicate copies of said process or original notice with said secretary of state, together with a fee of ten dollars, and (2) by mailing to the defendant ... by registered or certified mail, a notification of said filing with the secretary of state, the same to be so mailed within ten days after such filing with the secretary of state. Such notification shall be mailed to each foreign corporation at the address of its principal office in the state ... under the laws of which it is incorpo-rated_ The defendant shall have sixty days from the date of such filing with the secretary of state within which to appear. Proof of service shall be made by filing in court the duplicate copy of the process or original notice with the secretary of state’s certificate of filing, and the affidavit of the plaintiff or the plaintiff’s attorney of compliance herewith.
The secretary of state shall keep a record of all processes or original notices so served upon the secretary of state, recording therein the time of service and the secretary of state’s actions with reference thereto, and the secretary of state shall promptly return one of said dupli[44]*44cate copies to the plaintiff or the plaintiff’s attorney, with a certificate showing the time of filing thereof in the secretary of state’s office.
The original notice of suit filed with the secretary of state shall be in form and substance the same as provided in R.C.P. 381, form 3, Ia.Ct. Rules, 2nd ed.
The notification of filing shall be in substantially the following form, to wit:
To_(Here insert the name of each defendant with proper address.) You will take notice that an original notice of suit or process against you, a copy of which is hereto attached, was duly served upon you at Des Moines, Iowa by filing a copy of said notice or process on the_day of_, 19_with the secretary of state of the state of Iowa.
Dated at_, Iowa, this_day of_, 19_
Plaintiff
By
Attorney for Plaintiff
Actions against foreign corporations ... as contemplated by this law may be brought in the county of which plaintiff is a resident, or in the county in which any part of the contract is or was to be performed....”

The case record in the Iowa court shows that on June 23, 1989, two documents were filed: an “Affidavit of Compliance” and a “Notification of Piling.”

The Affidavit of Compliance reads, in pertinent part:

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2. That duplicate copies of [plaintiff’s] petition and original notices directed to the defendant were filed with the Secretary of State, on the 20th day of June, 1989, together with a filing fee of $10.00.
3. That notification of said filing with the Secretary of State was mailed to the defendant by certified mail within ten (10) days after the filing of same with the Secretary of State’s office.
4.That a copy of said Petition and Original Notice together with the Secretary of State’s certificate of filing is attached hereto and by this reference made a part hereof.
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Dated at Denver, Iowa, this 23rd day of June, 1989.”

The affidavit is subscribed by plaintiff’s attorney of record in the Iowa suit. Contrary to the averment of paragraph 4 in the affidavit, no copy of (1) the petition, (2) an original notice of suit, or (3) a Secretary of State’s certificate of filing is attached to the affidavit.1

The Notification of Filing (the other document filed in the Iowa court June 23, 1989) follows the form set forth in § 617.3 (quoted earlier) except (1) it does not state any address for defendant, and (2) no copy of an original notice of suit is attached to it.

The next activity of record in the Iowa court occurred September 18, 1989. On that date plaintiff filed an affidavit that defendant is a foreign corporation, is not a member of the military forces of the United States, is under no legal disability, and is not a prisoner in a penal institution. The affidavit confirmed the balance due plaintiff from defendant was $118,055.48.

Plaintiff appeared that date (September 18, 1989) by its attorney of record.

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Cite This Page — Counsel Stack

Bluebook (online)
804 S.W.2d 42, 1991 Mo. App. LEXIS 233, 1991 WL 16162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schumacher-elevator-co-v-springfield-elevator-co-moctapp-1991.