Horn v. Mississippi River & Bonne Terre Railroad

BLAND, P. J. The appellant is a Missouri corporation, and the record in the suit as well as the evidence of Meloy the constable show that its business office is located at Bonne Terre in St. Erancois county, Missouri. The service of the summons should have been on the president of the company or other chief officer or by leaving a copy of it with some person having charge of its office at Bonne Terre, as required by section 995, Revised Statutes 1899. There was, therefore, no legal service of the summons and the judgment by default rendered by the justice was without jurisdiction and is a nullity. M. K. & E. R’y v. Hoereth, 144 Mo. loc. cit. 148; Hope v. Blair, 105 Mo. 85; Blodgett v. Schaffer, 94 Mo. 652. But it is contended by appellant that inasmuch as the justice’s docket entry recites that the defendant “had been served with process,” that the respondent can not collaterally attack the judgment by showing that as a matter of fact the appellant was not served at all with process in that suit. The error in this contention is that it leaves out of view the fact that the summons and the return of service thereon by the officer, is as much a part of the record (if we are permitted to dignify the docket entries of a justice as records), as is the formal entries of the justice in his docket, and are higher evidence of the facts they contain, than is the recital of [478] them on the docket by tbe justice. Tbe return of tbe constable, as indorsed on the summons, is tbe primary evidence; tbe recitals on tbe docket as to what tbe return contains are but secondary evidence, and may be contradicted by tbe return. Such recitals in tbe judgments of courts of record inay be overthrown by other parts of tbe record. Williams v. Monroe, 125 Mo. 574; Hutchinson v. Shelley, 133 Mo. 400. Tbe judgment pleaded in bar, being a nullity, furnished no defense whatever to tbe plaintiffs cause of action. Hope v. Blair, 105 Mo. 85; Cloud v. Inhabitants of Pierce City, 86 Mo. 358; Wyeth Hardw. Co. v. Long, 54 Mo. App. 147. Tbe instruction given by tbe learned trial judge correctly stated tbe law and we affirm tbe judgment. All concur.