Illinois Central Railroad v. Swanson

Whiteield, C. J., delivered the opinion of the court. This case was begun before a justice of the peace, where judgment by default, without personal service, was had against the appellant for the sum of $199. This judgment was rendered on the 22d of May, 1905, and an appeal taken to the circuit court. The record shows that at the July term, 1906, of the circuit court, a motion was made by the defendant to quash the original summons and the return of the officer thereon; that evidence was heard on that motion, and the motion was sustained; that the plaintiff then obtained leave of the court to amend the officer’s return; that a motion was then made by the defendant to quash the amended return, which motion was sustained; that then, quoting from the record, “immediately thereafter the defendant made its motion to dismiss this suit and strike the same from the docket, because the court rendering the same had no jurisdiction, which was heard, and the court overruled the motion; that the defendant excepted to this action of' the court;” and that thereafter the parties announced themselves-for a.trial, and a jury came and were accepted, and the case was tried. It will thus be seen that the question first presented for decision here is whether or not the court erred in overruling the motion to dismiss the suit for want of jurisdiction in the jus [492] tice of the peace court, because it rendered a judgment by default in the absence of personal service. Learned counsel for appellee make a strenuous effort to show that what was done by the counsel for the appellant between the appeal from the judgment of the justice of the peace and the making of the motion to dismiss the suit in the circuit court amounted to entering a general appearance. They say that a careful inspection of the record will show that all steps in the proceedings on the part of the appellant, such as entering the name of opposing counsel, and the issuance of subpoenas for witnesses by order of such counsel, notice to take depositions for the appellant, and the tailing of such depositions, and filing the same, were taken before any motion to dismiss for want of jurisdiction was filed, and that it was only when the case was about to be finally submitted to the jury that the plea to the jurisdiction was interposed by appellant. We have examined and reexamined the record with care on this point, and the record before us plainly shows that this motion to dismiss was made at the July term, 1906, and acted on then, and that the case was not tried before the jury until the January term, 1907. Learned counsel for appellee say that at the January term, 1907, appellant moved for security for costs. We do not find any such motion in this record, and we, of course, are controlled by the record. Quite an elaborate argument has been made in this court in briefs of counsel on both sides with respect to the question whether or not what was done by the railroad company in the court below operated a general appearance to the action, and numerous authorities are cited. All this learning and diligence in the citation of authorities ivas wholly unnecessary, since the matter is directly controlled by Annotated Code 1906, §§ 3946, 3947, — especially the first section. These sections are in the following words: “3946 (3447)'. Motion■ to Quash Process an Appearance. — ■ Where the summons or citation, or the service thereof, is quashed on motion of the defendant, the case may be continued [493] for tlie term, but defendant shall be deemed to have entered his appearance to the succeeding term of the court. “3947 (3448). When an Appeal by Defendant an Appearance.- — "Where a judgment or decree is reversed on appeal taken by defendant for the want of service, or because of defective service of process, a new summons or citation need not be issued or served, but the defendant shall, without such process or service, be presumed to have entered his appearance to the cause in the court from which the appeal was taken when the mandate shall be filed therein.” Under that section, of course, the motion to dismiss for want of jurisdiction was properly overruled; and this brings us to the case on its merits. It is very satisfactorily shown by the testimony that the railroad company had no switch, no station, nor any delivering point at the corner of Levee and Washington streets, and, further, that the shipper knew that fact, and that the local agent of the company protested against writing in the bill of lading the direction: “To be switched to Levee and Washington streets.” We understand the true rule on this subject to be that expressed in 6 Oyc., 431, note 77, which rule is thus stated: “But, where the contract was to receive goods at a place on the company’s road other than a regular station, it was held that it was for the shipper to show that the contract was made with an agent having authority to make it. Newport News, etc., R. Co. v. Reed, 10 Ky. Law Rep., 1020.” On the facts in this record it is perfectly clear that this local agent had no such authority, and that he knew he had no such authority, and that, knowing he had no authority, he protested against writing the bill of lading as insisted on by the shipper; and it is perfectly clear that the shipper knew, as stated above, that there was no regular station and no switch at the corner of Levee and Washington streets. On the law of the case, therefore, as applied to the facts, it is manifest that no verdict on the case made by this record can be allowed to stand. Therefore the judgment is reversed, and the cause remanded. Beversed.