Stegall v. American Pigment & Chemical Co.

130 S.W. 144, 150 Mo. App. 251, 1910 Mo. App. LEXIS 693

Opinion

REYNOLDS, P. J.

(after stating the facts). — We have been compelled to make an unusually long state ment of a case involving comparatively a small amount and in making .it to resort to some extent to the transcript on file as counsel differ as to what is in that transcript; furthermore it was somewhat difficult to understand all of the proceedings in the order in which they occurred without a reference to the transcript. This is not said in criticism of the very full abstracts furnished by counsel on each side but in Anew of the difference of counsel as to what was in the transcript it is safer for the court to résort to that transcript. While the amount involved is small, the issues are important, and in some respects of first impression.

The first proposition is as to the conclusiveness of the return of a special constable, appointed under the provisions of section 3863, Revised Statutes 1899. That section, as amended by the Act of March 24, 1903 (Session Acts, 1903, p. 212), provides that every justice issuing any process authorized by this article (that is to say, article 3, of chapter 43, of the revision of 1899) upon being satisfied that process will not be executed for want of an officer to be had in time to execute the same, or in all cases Avhere the constable is a party to the pending suit, or is otherAvise interested in the result thereof, “May empower any suitable person, not being a party to the suit, to execute the same, by endorsement upon such process to the following effect: ‘At the request and risk of the plaintiff, I authorize-to execute this writ. E. F., justice of the peace.’ And the person so empoAvered shall thereupon possess all the authority of a constable in relation to the execution of- such process, and shall be subject to the same obligations, and shall receive the same fees for his services.” The changes made in this section, as it had existed ever since 1885 in this state, Avere in addition of the words “or in all cases where the constable is a party to the pending suit or is otherwise interested in the result thereof,” and in the omission after the word “execute” in the endorsement on the writ, of the Avords “and return” between the word “execute” and the words “this writ.” For the purposes of this case these amendments are not material and we only notice them for accuracy. Following this section is section 3864, which provides that every constable “or other person,” serving any process authorized by this article, shall return thereon, in writing, the time and manner of the service, and shall sign his name to such return. Doubtless the provision of this section rendered the word “return” in section 3863, as amended by the Act of 1903, unnecessary. The provision added by the Act of 1903 was made to meet a contingency that had brought the validity of a special constable’s appointment into question, the regular constable being at hand, and the case of the want of an officer to be had in time to execute the writ not being met, if the constable happened to be the party against whom the writ was to be directed. It has been held in construing section 3863 that it was not essential to the jurisdiction of the justice that it should appear on his docket entry that he was satisfied that the process would not be executed unless he deputized some person other than the constable to execute it. See Cooksey v. K. C., St. J. & C. B. Ry. Co., 17 Mo. App. 132. While it Avas held prior to the revision .of 1865 that the private person appointed as a special constable could serve Avrits of attachment, garnishment, replevin and the like, it has been held ever since the revision of 1865, that the justice cannot empower a private person to execute any final process or any process other than that covered by this article 3, of chapter 43. See Huff v. Alsup, 64 Mo. 51. It is to be noted that section 3864 requires every constable, as well as “every other person” serving any process authorized by the article to make return thereof in writing as to the time and manner of service, so that this section coArers the special constable as well as the regular constable or his deputy. Immediately following is section 3865, the section imposing • a penalty for failure to execute any process and make due return there of. It is limited to the constable alone, including, of course, the regularly appointed deputy of the constable, and the penalty could not, by any construction, be held to extend to the private person appointed as a special officer for service. This distinction is worthy of attention, as it emphasizes the point that the so-called “special constable” is in no sense an officer, but is in law and in fact the agent of the party to the suit at whose instance, as well as at whose risk, he has been named, with very limited powers, namely, to serve such.process as is covered by article 3, of chapter 4, and make return of “the time and manner of service.” When the regularly elected or appointed constable or his deputy serves process, they do it, as far as the constable and his deputy are concerned, under the obligation of their oath of office, and as far as the constable is concerned, under the obligation of his bond, he likewise being responsible under his bond for acts of misfeasance or neglect of duty or oppression in the office of his deputy.

In the case of Smoot v. Judd, 184 Mo. 508, 83 S. W. 481, in which case the conclusiveness of the return of an officer is more thoroughly and exhaustively discussed than .in any other case relating to the matter which has been before our courts, having the benefit of exhaustive discussion on both sides of the proposition, the principal and prevailing opinion being by Judge Marshall, concurred in by all the members of the court except Judge Valliant, the latter in an exceedingly able dissenting opinion presenting the opposite side of the question which was then before the court, it is decided that the return of the officer is conclusive, even in a suit in equity brought to set aside a judgment obtained on what was claimed to be a false return by the sheriff. It is there said by Judge Marshall (l. c. 518), “Ever since the decision of this court in Hallowell v. Page, 24 Mo. 590, the law has been uniformly 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 ser vice, is conclusive upon the parties to the suit. Its truth can he controverted only in a direct action against the sheriff for false return.’ ” Citing a long list of authorities to this effect from our Supreme Court, Judge-Marshall includes among them the case of Bant v. Shuman, 79 Mo. 527, where at page 532 it is held that parol evidence is inadmissible in aid or support of the return to show service in fact, though not in the manner set out in the return, and is admissible against the return only in a suit against the sheriff for false return. While this case was one on the return of a sheriff, the reason on which this rule of decision has been sustained and established has been held equally to apply to returns by constables and their deputies. That was so in the case-of Heath v. M. K. & T. Ry. Co., 83 Mo. 617, where the-return in question was by a constable, the same law that has been applied in this state to the returns of the sheriffs being there, as it is in many other cases, applied to the returns of constables and their deputies. In the leading case on the establishing the conclusiveness of a return, that of Hallowell v. Page, 24 Mo. 590, Judge-Scott, who delivered the opinion of the court, placed the rule on the ground of necessity, that is to say, it “is one necessary to secure the rights of the parties, and give validity and effect to the acts of ministerial officers,, leaving the persons injured to their redress by an action for a false return.”

In the case of Heath v. Railway, supra, Mr. Commissioner Martin, who wrote the opinion adopted by the court in that case, stating the rule which establishes the conclusiveness of a return, which in that case also was by a constable, and holding that the defendant is estopped by the record, that is to say, by the return itself, from impeaching its variety, says (l. c. 624), “The ground upon which this important rule rests is, that the officer declares in his return that he has done the things required of him to be done.”

In the Smoot case, supra, l. c. 629, Judge Fox, who,. concurred in by Judge Gantt, wrote a separate opinion, concurring, however, with Judge Marshall and all the other members of the court except Judge Valliant, in discussing the law that the limit of the remedy of a party to his action against the officer is upon his bond, says that in some instances this may entail hardship. It may be said that it is grossly inequitable where the sheriff and his bondsmen are insolvent and unable to respond in damages for the injuries resulting from a false return. But, Isays Judge Pox, this is no reason for disregarding the return, even in equity. If the officer or his bondsmen are insolvent and unable to respond in damages, the hardship is not the result of the failure of the law to provide a remedy, nor is it the reason for the application of the doctrine that the return of an officer is conclusive. The conclusiveness of the return of the officer is founded upon the fact that due administration of the law and protection of the rights of parties demand that when an officer in the discharge of his duty, does an official act, and it appears that he has done it in accordance with the law, good policy demands that it should be given absolute verity in all cases except where the officer himself is proceeded against for a violation of his official duty. While the action for official dereliction may be against the officer on his bond, and he and his sureties be held responsible under his bond for the damage which his or their wrongful or unlawful act has inflicted, outside of the bond he is liable for false return' or any other official act of malfeasance, in some cases even responsible criminally to prosecution under the criminal statutes. This, not because he has given bond, but because he is a sworn officer of the law.

It was held in an old case, that of Jones v. Hoppie, 9 Mo. 173, l. c. 174, that a special deputy, appointed at ■the risk and request of a party, might be regarded as a deputy of a regular constable, but that is the only case we have found that has gone to the extent of holding him to be even an officer, and that was a very spe cial case, a case arising over a conflict between the constable and this special deputy, appointed by the justice, the latter having forestalled the regular constable in the levying of execution or other process on property against which the regular constable also held process. It is evident. from a reading of the case, that the court considered the action of this special constable as in some sort a trick attempted to be played upon the constable, and to avoid the effect of the trick, the court held that the attachment of the property by the special was to be considered as an. attachment by the regular constable. In that sense it used the expression that the special was to be regarded in that case “in a measure,” as a deputy of the regular constable. That was under the law of this this state as it existed in 1835, and as we have seen, that law placed much more power in the hands of these specially appointed constables than the law has seen fit to do in the revision of 1865 and ever since that time. Hence we do not consider the case of Jones v. Hoppie, supra, as controlling or in harmony with our present law. It is to be noted that in all the cases in which it is held- that the return of the officer is conclusive, even against attack in,equity, the cases were those of regular officers or their duly appointed deputies. No case has so held when the person making the return was specially appointed by the justice “at the request and risk of plaintiff.” In the light of the cases and of the ground upon -which they rest, we hold that under our present statute and .the construction given to it, this specially appointed process server is to be regarded, in making his return, not as an officer of the law, but as the agent of the party at Avhose instance and at whose risk, under the provisions of section 3863, he has been appointed. We are led to this conclusion also by another consideration and by reasoning on an analogous proposition. In the Smoot case, supra, in the opinions of Judge Marshall and of Judge Fox, which may be considered as following the same lines of argument, it is distinctly held, following Walker v. Robbins, 14 Howard (U. S.) 584, and many other authorities, that equity will hold the return of the officer as conclusive upon the parties to the suit both in the same case and in equity, “except where the plaintiff has aided, abetted or knowingly taken advantage of the false return.” It may be said that the court is unanimous on this point. Even the majority conceded that the return could be attacked in equity if shown to have been falsely and fraudulently made by the connivance or consent or procurement of plaintiff, while Judge Valliant held that it could be attacked in equity for its mere falsity. Undoubtedly, therefore, he would hold that if plaintiff was party to the procurement of the false return equity would overturn it.

The private person appointed under section 3883 to serve process, is regarded by the law, not as is an officer of the law, standing indifferent between the parties to the action, but as the agent, the representative pro hao vice, of the party at whose instance and risk he is appointed. That being so, and applying the principle announced in the decision in the Smoot case by all the judges, it must follow that if a suit in equity was instituted on a judgment which rested for its service on the return of a person appointed under the provisions of this section, the judgment would be open to attack for a false return of process if it appeared that the return was false, for the return being the act of the plaintiff’s agent, if plaintiff is the one who had recovered the judgment, the plaintiff would be chargeable with whatever fraud or false statement or misstatement his agent, the special constable, had made. That being so, we see no reason why the court should drive the party into equity to vacate the return. If it is open to attack at all, there is no substantial reason why that attack cannot and should not be made direct by motion to quash the return when it is before the court in the very action. Applying this rule to the case in bar, we hold, as the learned trial judge undoubtedly held, that all of the various returns which were made by this so-called special constable, one appointed under section 3863, were open to impeachment and attack by motion to quash, and on the hearing of that motion are but prima facie evidence of the facts of service therein set out.

It does not follow from this because the return of the specially appointed constable is not conclusive, that .it is not subject to amendment. It was distinctly held in the case of Mangold v. Dooley, 89 Mo. 111, l. c. 115, 1 S. W. 126, which was a case in which a garnishment in attachment was attempted to be served by special constable appointed under the provisions of what is now section 3863, that the objection made to the return of the service by the special constable so appointed, might be removed “by an amendment of the officer’s return if the facts warranted it,” provided the officer in question had power and authority to serve the process in question. It has been decided in a multitude of cases, that down to the rendition of judgment, and even afterwards, the courts have power to allow officers and even ex-officers, to amend their returns. Thus in the Smoot case, supra, at page 541, it is held that the trial court had power to permit the 'ex-sheriff to amend his return, which he did, even after he was not only out of office but after the case had been tried in the circuit court, appealed from that to the Supreme Court, there reversed and remanded to the circuit court and the amendment made in the circuit court after its remander. This renders the failure of plaintiff in error to save exception to the order of the court allowing the fourth amendment of the return a harmless oversight. If exceptions had been saved it would have been futile.

We therefore hold that the return of the special constable, appointed under the section • 3863, is only prima facie evidence of the facts therein set out and is open to attack, on proper motion, and that it was within the power of the court in which the case was pending, at any stage of.the proceedings, to allow an amendment to the return so as to show the real facts, that the returns, as made by this special constable, •were but prima facie evidence of those facts which under the law, any officer serving such process is required or authorized to make return thereof.

This brings us to a consideration of the proposition as to whether the returns made by this special constable are sufficient returns and correct in fact. It is very earnestly argued by the learned counsel for the plaintiff in error that the first return made by the special constable is so defective as to require no argument to demonstrate that fact, and that the fact that defendant had secured three amended returns to be made, establishes the proposition that the first and succeeding returns, down to the last, were erroneous. We do not agree that the first return was so insufficient as to be void. On an examination of that return which was made by the special constable in this case, it will appear that it. states that it was served on Frank J. Diekmann. It stated in so many words, “that it was served on president of the within named defendant,” said defendant corporation “having no business office in St. Louis at the time of the service.” It is very evident' from this that it was served on Diekmann, as president. The summons itself as well as all the returns clearly show that Diekmann was not proceeded against or summoned as an individual. This was all that the officer was required to certify in his return. All that section 8862, Revised Statutes 1899, required, so far as here relevant, is that the officer or person making the return shall state that the corporation defendant, it being a foreign corporation, has no office or place of business here, and that it was served on any agent or employee in any county or city -where such service may be obtained. It is-not even necessary for him to state in his return that the defendant was a foreign corporation. All that was set out in the subsequent returns as to that is surplusage and can be disregarded. See Newcomb v. New York Cent. & H. R. R. Co. , 182 Mo. 687, l. c. 706; 81 S. W. 1069. That service on the president of the defendant was sufficient to bring the defendant into court before the justice in the first instance, and it did. The fact that it was amended or, going further and admitting that it might have been abandoned by these amendments, does not overcome the fact that it accomplished its purpose lawfully and did bring the defendant into court. If the defendant had no notice by service on Mr. Diekmann, it was open to -it to remain away, let judgment go and then attack the judgment if it was sought to enforce it or if it stood as a judgment of record against it. We say it could have done this, but was not bound to do so. Very properly and without sacrifice of any right, it appeared and moved to quash the return of service. If process had not been served on Mr. Diekmann, or if he was not the president of the company at the time, or if the company had an office in the city of St. Louis or no office at the time of service, the return was open to attack by a motion to quash, and open to the defendant to show that none of these facts nor any one of them was true. That is all that a motion to quash could properly reach. If the defendant was a domestic corporation, it could set that up in the motion to quash as a reason why the service and return were insufficient. But if the defendant, as it here desired, intended to raise the proposition that it was a foreign corporation transacting no business in Missouri and therefore not subject to the jurisdiction of the courts of this state, that was matter of defense to be raised, not by motion to quash, but by plea in abatement, which, as held in many of our recent decisions' and as established by authorities quoted by the learned counsel for the plaintiff in error, could be joined with a plea to the merits without waiving the matter in abatement. The only proposition correctly before the court, either the justice or the circuit court, on the motion to quash, was the question of whether or not the return or the fact of-the service w'hich the special constable made, was true in point of fact. We are, however, not resting our decision in this case on the technicality that the return was not correctly attacked. We are treating this as if the proper motion to quash, limited to the objects of such a motion, had been filed, and a plea in abatement also interposed, the defendant not pleading to the merits, not appearing to the case on the merits, thus give the defendant the utmost latitude of construction on the case made by its learned counsel. In this view of the case, the attacks made upon the subsequent returns are of minor consideration, but in order to treat the case fairly, we hold that each one of those subsequent returns, as finally amended, certainly was a sufficient return of the fact as to the party on whom the service was made; as to the fact that it was served on the president of -the company, as such, and as to the fact that the company had no office at the time of service in the city of St. Louis. Notwithstanding the elaborate argument of counsel for plaintiff in error to that effect, we do not regard the insertion of the word “regular” in the third and fourth returns as in any way vitiating the returns. When the statute requires the return to be that the defendant has no office in this state, it certainly means an established office, that is to say, a regular office, not a mere casual place of meeting. It is common knowledge to all lawyers who have had any corporation business, and that includes almost the whole line of the profession, that time and again the boards of directors of their companies meet in the offices of their lawyers or of some officer of the company, and there transact business, and it is very common to head the minutes of the meeting at that place as if held at the office of the company, although the company may have a regular office in the very same town or city in which this meeting is held. No one has ever suggested, that that constituted the place in which the meeting happened to be held as an office for service within the meaning of our statute. The statute, when it requires a return of no office found in which to execute service, necessarily means an established office, that is to say a regular office, not a mere place where meetings are casually held, say at the office of the company’s lawyer, or at the residence of some one of the officers or directors who may happen to be sick or unable to be present elsewhere at the time. That, at the time being, and pro hac vice, is an office of the com-" pany, but it is not its regular, not an established office. Assuming that we are wrong in this, it is to be said as to this word “regular” in the return, that the returns of constables and the like are not to be scrutinized with the technicality that is indulged in in testing the returns of sheriffs and higher officers. Thus it is said in Ruby v. Hann. & St. Jo. R. R. Co., 39 Mo. 480, that where the return on the execution was “not satisfied, there being no property found to levy the same on,” was good, although the statute required the return to be “that the defendant had no goods or chattels whereof to levy the same.” In Ables v. Webb, 186 Mo. 233, l. c. 246, 85 S. W. 383, it is said that ¿ return that complies with the spirit of the statute and is substantially in form, is good; that the returns of constables are not to be Aveighed too nicely. It is said in the case of Huhn v. Lang, 122 Mo. 600, 27 S. W. 345, that the powers and duties of constables within the jurisdiction of the justice are identical with those of a sheriff, and so with reference to this special constable, while his returns, as we hold are not as conclusive, his powers and duties in the service of process which he has power under the statute to make, are as broad as those of the constable himself or of a sheriff.

We hold then that it was proper matter to put in issue by a motion to quash as to whether this special .constable had served the president of the company on the day named, with the summons in the case, and if so, whether, at that time, the company defendant had no office in the- city of St. Louis. These were issuable facts — these and these alone under the motion to quash. Independent of the question of the special constable’s return as to these facts, the fact of its being a foreign corporation and haying no office was admitted in the various motions and affidavits filed on behalf of the plaintiff in error, defendant below, and abundantly proven by the evidence. The evidence in the case on -the trial of the motion to quash conclusively established the fact that the man on whom the special constable served the writ was, at the time, the president of the defendant company. So that every essential fact that was set out by the special constable in this case, necessary to confer jurisdiction on the justice and on the circuit court is established by .the proof of the defendant itself, outside of the return of the special constable. The motions to quash the return of service of the summons, whether you count on the first, second, third or fourth return, were properly overruled.

There then remains but one other question in the case, namely, the question of whether the defendant, at the time of the institution of the action and service of the summons upon, was transacting business in this state, in the sense of our statute. The learned counsel for the plaintiff in error cite in support of the proposition that the court erred in holding that the defendant was doing business in this state within the meaning of our statute the cases of First Nat. Bank v. Leeper, 121 Mo. App. 688, 97 S. W. 636; Missouri Coal & Mining Co. v. Ladd, 160 Mo. 435, 61 S. W. 191; Hogan v. City of St. Louis, 176 Mo. 149, l. c. 157, 75 S. W. 604. We have given careful attention to these cases, and these are all the Missouri cases cited by counsel on this question, and have not thought it worth while to go outside of our state for the 'construction of our statutes on a matter so purely of local law and depend ing so entirely upon tlie construction of our own statute. An examination of the cases referred to by the counsel for the plaintiff in error fails to satisfy us that, on the.evidence adduced in this case, the defendant falls within any of them.

We might be warranted in resting the determina-' tion of this question of fact, as it is, on the.conclusion of the learned trial judge, as the case was tried before him without the intervention of a jury, but as counsel for the plaintiff in error, defendant below, in an extensive brief and in an elaborate argument in support of a motion for rehearing which they interposed and on which we heard them in open court, are very strenuous in their insistence that there is no evidence whatever to sustain that finding and that it appears even affirmatively by the evidence that the- defendant corporation was not at the time when this action was commenced actually engaged in business in this state within the meaning of our law, we have concluded to go more fully into detail in setting out the evidence which undoubtedly controlled the learned trial judge in finding that the defendant was within our law and which satisfies us that that conclusion was correct. Counsel argue that the business for which the defendant was incorporated was the manufacture of pigment. That is true, but outside of this mechanical work, the doing of which was an object of the incorporation, is the fact that to do this it had to do other acts that were just as much-corporate acts as was the manufacture of this pigment. A corporation, an artificial body, cannot' successfully manufacture pigment or carry on any other work, whether simple or complicated, except through its officers and agents, whose acts as such are part of the business of the corporation. It is not only the physical but the mental work of these officers and agents that must be relied on for the successful direction of the affairs of a corporation, and the exercise of these acts by these officers and agents, is just as much part of the operations of the corporation, part of the doing of business by the corporation, as is the mechanical or industrial work in which it is engaged. The evidence shows without question, that down to a very short period immediately before this suit was commenced the headquarters of this corporation were located in the city of St. Louis — here its officers met, its board of directors met, its supervising officers resided, and from here it is fair to assume that the mechanical as well as all other operations carried on at its works in Illinois or elsewhere had their direction. Wé hold that this is as much doing business and as much within the law as the mechanical part itself and that without this “brain work,” so to speak, this direction of the controlling mind, there could be no successful conduct of the mechanical work. How near down to the time of the institution of the suit it is necessary that this work of direction should have been carried on in this state, to bring the corporation within the law, as a corporation doing business in this state, we are.not prepared to say. Each case must turn on its own merits. It is very evident, however, that within a very short time prior to the institution of this suit this work of direction was carried on in this state, and that doAvn to the time of the trial it still had important business in this state. That its board of directors had not met here after April 15,1908, does not necessarily mean that the company did no business here thereafter. The funds of the corporation were kept here in bank down to the latter part of July, 1908; the check book was here; checks were made out here; contracts were made here; the very work here sued for by this plaintiff was contracted for in this city, and it was done in this city after the contract was made. All this was within the express charter power of the corporation, and could only be done, to be lawful, under its charter.

The defendant is an Arizona corporation. The articles of incorporation of the defendant are in evidence in the case, introduced by the defendant, and we find that by the first of these articles it is provided that the principal «place within the territory of Arizona in which the business of the corporation is to be transacted is Phoenix, “and the corporation may establish branch offices either Avithin or Avithout the territory of Arizona, where meetings of the board of directors may be held.” The second article provides for the general nature of the business proposed to be transacted by the corporation which is, among other things, first, tq manufacture pigments; third, to construct, lease, operate and maintain any sort of chemical <jr kindred plant for treating ores; fourth, to make contracts, to purchase, own, sell or otlierAvise dispose of any and all kinds of real and personal property, mines and mining lands, mining claims, leases, bonds and options; fifth, to buy, sell and deal in patents; sixth, to buy, sell and deal in the shares, interests, stocks and securities of other corporations, so far as the same may be of advantage or germain to the general business of the corporation; seventh, “in general, to do all things necessary or advantageous to the proper conduct or benefit of the business of this corporation in the territory and elsewhere, not inconsistent with the laws of the United States and the territory of Arizona.” These articles of incorporation appear to have been signed by all the incorporators in the city of St. Louis. They were acknowledged in that city before a notary public of the. city of St. Louis by four of the six directors, who were the president, vice-president, secretary and treasurer of the corporation, on the 18th of January, 1906, and these are the only incorporators who did acknoAvledge them, although two other citizens of St. Louis, with these four, compose the board and are named as incorporators. The articles were recorded in Maricopa county, Arizona, with .the recorder, on the 16th of January, 1906, and were filed in the office of the territorial auditor of the territory of Arizona on the 16th of January, “at request of Stod arel Incorporating Company, whose postoffice address is Phoenix, Arizona,” as is certified to byrthe territorial auditor of Arizona, It does not appear that the board ever met in Arizona.

This present action, as before stated, was commenced in the justice’s office, apparently on the 27th of June, 1908, at least that is the date upon which the summons issued. The account sued on is for service for eleven and a half months, beginning May 1, 1907, and ending April 15, 1908, so that only a little over two months before the institution of this suit, this defendant was undoubtedly having business transacted for it, services rendered to it, in St. Louis, Missouri, and down to that time, that is, April 15, 1908, its board of directors had been holding meetings in St. Louis. It was organized here. It had held all its meetings here prior to that time; it kept all of its books here; the latter part of July, 1908, it had its bank account and kept its money and drew the checks for that money in the city of St. Louis. It had papers and accounts on deposit in a deposit box in St. Louis, rented and used by it down to the trial. Great reliance is placed by the learned' counsel for the plaintiff in error, defendant below, on the case of First National Bank v. Leeper, supra. Judge Eluson, who delivered the opinion of the Kansas City Court in the case, at page 693, says that all agree that the corporation must be doing and transacting business for which it was incorporated and not merely what it might have authority to do and that there must be a doing of some of the work or an exercise of some of the functions for which the corporation was created to bring the case within the statute. Applying the law of that case, and it is practically in line with the other cases relied on but possibly the strongest case that plaintiff in error has cited, the reference which we have made to the articles of association very clearly shows that this corporation was doing some of the very business for which it was incorporated in St. Louis, namely, making contracts and paying ont its moneys, and from St. Louis directing all corporate operations. It is specifically authorized by its charter to carry on any of the business connected with its organization or work anywhere in the United States. Considering the testimony in this case then, as to what this defendant below, plaintiff in error, was actually doing, down to within a very short time of the institution of this suit, some of it after action brought, we hold that there was evidence before the learned trial court authorizing it to find that the corporation defendant was a foreign corporation, transacting business in this state and liable to' be served as such by service upon any of its officers, the evidence being very clear that at the time of the service it had no office or place of business in this city or in this state. We do not think that it is within the spirit of our law to allow business to be done here, debts contracted, service to be performed here, from the very inception of the corporation down to a very few weeks before suit and then allow the corporation to shift out of our jurisdiction, leaving debts here contracted unpaid and their establishment in our courts impossible.

The motion for rehearing is denied and the opinion as here written is substituted for that heretofore filed. The judgment of affirmance heretofore rendered will remain as the judgment of this court,

all concurring.