Vickery v. Omaha, Kansas City & Eastern Railway Co.

BLAND, P. J.

Defendant is a railroad corporation. The judgment was by default. After an unsuccessful motion to set aside the default judgment, defendant appealed.

One of the contentions of appellant is, that there was no service of process of summons on defendant and that the court acquired no jurisdiction over the person of the defendant.

The sheriff’s return on the summons is as follows:

“I executed this writ in the county of Marion and State of Missouri on the twenty-seventh day of April, 1900, as di *5 rected by ¥m. R. Anderson, tbe attorney for tbe within named plaintiffs, by delivering to, and leaving with, Z. Dice a copy of this summons, together with a copy of the petition attached thereto, at and within the West Quincy station, said Dice being then and there the person in charge thereof and said station being a regular station and business office of the line of the Omaha, Kansas City & Eastern railroad where the usual and ordinary business of said railroad is regularly transacted, the president or chief officer, of said company not being found in said county of Marion.

“I was informed by said Dice, at the time of said service, that said railroad, and the business thereof, was then being operated and conducted by Charles H. Chappell and James Hopkins, receivers of said railroad, appointed by the circuit court of the United States for the western district of Missouri; that said station and business office was the station and business office of said receivers and not the station and buáness office of the defendant railroad company, and that he, said Dice, was in charge of said business office and station as station agent for said receivers and not as agent for said defendant railroad company.”

“E. Simms O’Connor,

“Sheriff of Marion County, Missouri.”

I. The sheriff in his return studiously avoided the statement that defendant had a business office or that he served the summons by leaving a copy with a person in charge of a business office of the defendant in Marion county. He states that Dice had charge of a business office on the line of the Omaha, Kansas City & Eastern railway.where the usual and ordinary business of said railroad is regularly transacted, but he nowhere states that this office was the office of the defendant company as he should have done. Gamasche v. Smythe, 60 Mo. App. 161 . The explanation of his failure to connect the *6 defendant company with the railroad is found in the addendum -to his return.

II. The word “railroad” from its context may sometimes be construed to mean “railroad company,” but there are no connecting words in the return of the sheriff to warrant the word “railroad” as used in the return to mean “railroad company.” In order to adjudge that the return is sufficient to have given the trial court jurisdiction over the person of defendant, we must hold that the Omaha, Nansas City & Eastern railroad and the railroad company of the same name are identical. To do so would require a most liberal construction of the- return, whereas the law requires that the return of an officer, showing or attempting to show constructive service, should be strictly construed. Blanton v. Jameson, 3 Mo. 52 ; Stewart v. Stringer, 41 Mo. 400 ; Bank v. Suman, 79 Mo. 527 ; Gamasche v. Smythe, supra. A railroad is an object, a thing; a company of the same name is a body corporate, a person in law. Identity of name might ordinarily indicate that the corporation owned and operated the railroad but it is not legal evidence of these facts. Every fact necessary to confer jurisdiction on a court to hear and determine a cause must affirmatively appear in its proceedings. Laney v. Garbee, 105 Mo. 355 ; Cloud v. Inhabitants of Pierce City, 86 Mo. 357 .

A defective service may sometimes confer jurisdiction (Thompson v. Railroad, 110 Mo. l. c. 155), but where there is no service, no jurisdiction is conferred. The return fails to show that any notice, defective or otherwise, of the suit was served on the defendant.

On the hearing of the motion to set aside the judgment, the defendant introduced and read in evidence a certified copy of an order made by Hon. Amos M. Thayer, judge of the United States circuit court in and for the northern division of the eastern district of Missouri, made on January 2, 1900, in a suit by the receivers of the Nansas, etc., railroad company *7 against the Omaha, Kansas City & Eastern Railroad Company et al., appointing Charles H. Chappell and James Hop-bins receivers of said Omaha, etc., railroad and a subsequent order made by the same judge on January 17, 1900, relieving said. receivers of giving further bond. So that it presumptively appears that when the sheriff served the summons by leaving a copy with Dice, the railroad with all of its appurtenances was in the possession and under the control of the receivers and that the station, of which Dice was in charge, was at the time a business office of thé receivers and not of the defendant.

The motion to set aside the judgment should have been sustained. We reverse the judgment with directions to the circuit court to set aside its order overruling the motion, to reinstate the motion, to sustain it and to set aside the judgment.

Goode, J., concurs in the first paragraph; Barclay, J., not sitting.