Young v. Niles & Scott Co.

99 S.W. 517, 122 Mo. App. 392, 1907 Mo. App. LEXIS 28

Opinions

NORTONI, J.

This case, a suit in conversion, was instituted before a justice of the peace in Stoddard county. The defendant is a foreign corporation. It is an incorporated company existing by virtue of the laws of the State of Indiana under which it was incorporated for the purpose of manufacturing and selling wheels, hubs, spokes, hose-carts, etc. Its home office is in the city of La Porte, in that State. In furtherance of its said business, it maintains a saw mill and plant and employs a number of millhands, under the supervision of one S. M. King, its foreman in Stoddard county, where this suit was instituted. As said, plaintiff, a resident of that county, instituted this suit in conversion before a justice of the peace of the proper township, and service of summons therein was had on the defendant under the provisions of section 3862, Revised Statutes 1899, by serving said S. M. King, its foreman, as an “agent or employee” under the provisions of said section; that on the return had thereon, to-wit, June 21, 1904, plaintiff prevailed before the justice of the peace and recovered judgment against the defendant in said court for $121; that fifteen days thereafter, to-wit, July 6th, the defendant, under the provisions of section 4060, R. S. 1899, granting defendants, who are non-residents of the county, twenty days in which to perfect their appeal from the justice of the peace court, filed its sufficient affidavit and bond with the justice of the peace for an appeal of the cause to the circuit court. The cause coming on to' be heard in the last-named court, plaintiff moved the court to dismiss said appeal on the ground that it was not perfected within the ten days prescribed by the statute, contending that the defendant was not a non-resident of the county within the meaning of the statute. On this motion, defendant introduced its articles of association, together with the certificate of- its incorporation under the hand and seal of, and duly certified by, the Secretary of the State of Indiana, showing it to be a resident of that State, etc. The defendant’s president also testified that on all of the days mentioned herein it was an incorporated company of the State of Indiana with its home and managing office in the city of La Porte in that State; that its business there conducted is the manufacture and sale of wheels; that in furtherance of its business under its certificate of incorporation, it maintained a sawmill and plant in Stoddard county which prepared and furnished timber to the home concern in Indiana, which plant in Stoddard county was managed and operated by defendant and was in charge of said S. M. King under whom several men were employed; that it had no managing office, nor otherwise than stated, carried on or conducted its usual busi ness in Stoddard county. Upon hearing this testimony, the court overruled plaintiff’s motion to dismiss the appeal, in effect holding the defendant to he a non-resident of said county and therefore entitled to twenty days in which to perfect its said appeal. From what has been said, it will be observed that the question on which we are required to give the opinion of the court is whether or not the defendant was a resident or non-resident of Stoddard county within the meaning of section 4060 allowing a non-resident twenty days in which to perfect its appeal.

Section 1024, R. S. 1899, with respect to foreign corporations, provides as follows:

“Every corporation for pecuniary profit formed in any other State, territory or country, before it shall be authorized or permitted to transact business in this State or to continue business therein if already established, shall have and maintain a public office or place in this State for the transaction of its business, where legal service may be obtained upon it.”

Section 1025 provides that foreign corporations shall file in the office of the Secretary of the State a copy of its charter, articles of incorporation, etc. Section 1026 provides penalties for failure so to do, etc. There is nothing in the record tending to sIioav that this defendant performed any act under these statutes which Avould tend to bring it Avithin their provisions. The ease therefore before the court is that of a foreign corporation, in no sense a resident of the State, which is engaged in part in carrying on its business in Stoddard county and maintains a plant there in charge of its foreman and employees. Section 3839, Revised Statutes 1899, with respect to where suits before a justice of the peace shall be commenced, provides: “Every action recognizable before a justice of the peace shall be brought before some justice of the township, either . . . second, wherein the plaintiff resides, and the defendant or one of them may be found; . . . fourth, if the defendant is a non-resident of the State . . . the action may be brought before a justice in any county in this State wherein the defendant may be found.” It appears from the second provision above quoted, that the action having been commenced in the township wherein the plaintiff resided, the same was properly maintainable against the defendant, provided it was found therein in the sense employed in the statute with respect to the service of process, or, under the fourth provision quoted, it being a non-resident of the State, the plaintiff could institute his suit before any justice in any county wherein the defendant could be found in the sense employed in the statutes for the service of process. It becomes important, then, to ascertain what service of process could have been had in this case, or what was the manner pointed out by law for a valid service in a case such as this. By reference to section 3862,-Revised Statutes 1899, we find that, “Every summons issued by any justice of the peace, unless otherwise provided by law, shall be served at least ten days before the day of appearance therein mentioned, and shall be executed either, first . . .or fourth, where the defendant, not being a railroad corporation, is a corporation or joint stock company, organized under the laws of this or any other State or country, and having an office or doing business in this State, by delivering a copy of the writ to any agent of such corporation or company in charge of any office or place of business, or if it have no office or place of business, then to any agent or employee in any county or city where such service may be obtained.” Now, it is clear under this statute that even though the defendant did not maintain a business office in Stoddard county, that the service on King, its foreman, as “agent or employee” in charge of its works there, was valid inasmuch as it maintained a plant there and carried on a portion of its business, where it maintained a foreman and several employees at its mill, sawing and preparing timber for its factory in Indiana. [Banister v. Weber Gas, etc., Co., 82 Mo. App. 528.] It seems clear that this case would fall within not only the letter of the statute, but within the intention of the Legislature as well, for it is indeed quite reasonable that the Legislature intended a foreign institution of this sort, carrying on a business by employees and contracting obligations in this State thereabout, should be amenable to the process of the courts by service upon the agent and employees conducting the business for the defendant in the prosecution of which obligations are contracted. This whole matter is immaterial here, however, as the validity of the service in the first instance is not controverted by the defendant, and it is referred to only as a predicate upon which the opinion of the court is to be given.

We ascertain from the statutes quoted, and from what has been said thereon, that the defendant was found in Stoddard county within the sense employed, for the service of process. Yet while it was found there by its agents and employees, it resided in a foreign State and the original question recurs: Was it a resident or non-resident of Stoddard county within the meaning of section 4060 with respect to the time when an appeal shall be perfected? The statute, so far as material, is as follows:

“No appeal shall be allowed in any case unless the following requisites be complied with: First, the appeal must be made within ten days after the judgment was rendered, but if a non-resident of the county where the suit shall be instituted, the party shall, in all cases of appeal allowed by this article, have twenty days to make such appeal,” etc.

Now, in common justice, it seems that there ought not to be any difference in the application of the law to the case of a corporation and an individual, and it might he suggested that if this were the case of a private individual, a resident of Indiana, who owned a plant in Stoddard county and while there, service of process was had upon him and in conformity thereto, a judgment was rendered against him, no one would question for a moment that under this statute he would be entitled to twenty days in which to perfect his appeal therefrom. But such is not identical with the case now in judgment, for there service would have been had upon an individual defendant and here service is had perforce of the statute upon an agent of the defendant. Now, if the statute provided in the case of an individual that service might be had by delivering a copy of the writ to his agent or employee, then the case of a private person would be the same as that of the corporation here presented, and we apprehend that an identical ruling would be made by the court in either case. There certainly could be no principle upon which a different ruling could be predicated in one case thán the other. So we see the question is, if the defendant is sufficiently a resident of the county of Stoddard so that the process of a justice’s court may be served upon it as a prerequisite to a valid judgment, is it also a resident of such county so as to require it to perfect its appeal within ten days after such judgment? Now, it is settled in the law that where any officer or person representing a corporation may be served with summons in the first instance, service of notice of an appeal in the same case on the same officer is sufficient. [2 Ency. Pl. and Pr., 224.] This principle, however, affords no light on this subject otherwise than by analogy of reason. And in Smith v. Pilot Knob Mining Co., 47 Mo. App. 409-415, the principle was announced that a foreign corporation may become a resident of this State or a county for the purpose of jurisdiction, even though its legal residence as an entity is elsewhere. The identical question involved here with respect to railroads was presented to our Supreme Court and it was decided by that tribunal that inasmuch as a railroad company passing through a county, could be sued by process served upon its stationmaster in that county, under the statute, that it therefore had a legal situs in such county within the meaning of this statute authorizing non-residents of a county twenty days to appeal, and that it was not a non-resident of such county even though its general offices were elsewhere; or, in other words, that as it could be lawfully served by delivery of process to its agent, within the county, it was a resident of the county within the meaning of the statute and should perfect its appeal within ten days after judgment. This case has been followed and affirmed. [See Slavens v. Railway Co., 51 Mo. 308; Harding v. Railway Co., 80 Mo. 659; Tutsinger v. Railway Co., 82 Mo. 64.] This doctrine is correct on principle with respect to railroad corporations and manifestly so with respect'to domestic corporations of that class, as they are considered and treated as residents of any county in which they operate their road and employ the franchises granted by the State. And the court, in Harding v. Railway Co., supra, lays particular stress upon this proposition. Each of the subsequent cases cites and approves the doctrine in Slavens v. Railway Co., which case rested the judgment of the court principally upon the proposition that inasmuch as the defendant was made a resident of the county by the statute in that sense that it might be served with process by delivering a copy thereof to its station agent, it should be held to have a legal situs therein and was a resident thereof within the meaning of section 4060 with respect to time granted for appeals, and therefore had only ten days in which to perfect its appeal from the justice. We are unable to distinguish this feature of these cases from the one here in judgment. It must be true that if the railroad company was made a resident of the county within that statute by the mere fact of having an agent in the county on whom valid service of process might he had, then this defendant, engaged as it is in the exercise of its franchises or a portion of its franchises at least, in Stoddard county and keeping an agent there upon whom valid service of process could he had, was likewise within the meaning of the same statute a resident of such county and as such, was entitled to ten days only in which to perfect its appeal. It appearing that the appeal from the justice was perfected fifteen days after judgment in the justice’s court, the circuit court acquired no jurisdiction thereby and the judgment is reversed and the cause remanded with directions to the trial court to enter an order dismissing the appeal from the justice’s court. It is so ordered.

Bland, P. J., and Goode, J., concur; Judge Bland files a separate opinion.