John McMenamy Investment & Real Estate Co. v. Stillwell Catering Co.

REYNOLDS, P. J. This is an action begun in the circuit court against the Stillwell Catering Company, a corporation alleged to have been organized and existing under the laws of the State of Missouri, and against one Charles H. Stillwell, to recover rent alleged to be due on a lease executed between the corporation and Stillwell, lessees and individual lessors, to recover thirty-two months’ rent fo.r certain premises in the city of St. Louis. The lease was subsequently assigned to plaintiff, who brought the action, suing' out an attachment in aid. Summons issued directly to the sheriff of the city of St. Louis who made return that neither the individual defendant nor the Catering Company could be found in the city of St. Louis and further executed it by levying on the — 671 — unexpired term of the lease and garnishing certain parties, subtenants of defendant. Whereupon alias summons issued, directed to the sheriff of the city of St. Louis, hut this summons appears to have come into the hands of a deputy sheriff of the county of Los Angeles, California. This officer made return of service upon the president of the defendant company and also upon the individual defendant. The return is sworn to and the official character of the officer is attested under the seal of the court by the clerk of the county court and ex oficio clerk of the Superior Court of the county of Los Angeles, California, who certified that the officer serving the writ “was at the date aforesaid and now is a deputy sheriff” of the county and duly authorized to serve process in the county and that he is an officer of the court. The individual defendant, Stillwell, appeared and filed a certified copy of his adjudication in bankruptcy and thereupon the cause was dismissed as to him. The defendant corporation entered its appearance solely for the purpose of the motion and for no other purpose, and moved the court to quash the summons and the affidavit of service thereon on Mr. Stillwell as the president of the defendant corporation, on the ground “that it appears from the petition in this cause that this defendant is a corporation under the laws of the State of Missouri and that under the laws of the State of Missouri this defendant cannot be served with summons without the State of Missouri, hut must he served within said State of Missouri.” This motion was overruled, the defendant corporation excepting. The corporation defendant not appearing to the cause nor pleading, the cause was submitted to the court, evidence heard and judgment by default, both on the attachment and on the merits, entered against the defendant corporation. Thereafter and within due time the defendant corporation, still confining its ap — 672 — pearance for the purpose of making the motion, moved the court to set aside this judgment on the ground that the court was without jurisdiction to render it against the defendant because defendant had never been summoned in the cause, and because the court erred in overruling the motion theretofore made by that defendant to quash the summons issued against the corporation and the return thereon. This motion was overruled, exception duly saved and appeal duly perfected by the corporation defendant, without bond, however. The learned counsel for appellant have presented several grounds in this court why this judgment should be reversed. The only ground, however, that we can notice is the action of the court in overruling the motion to quash the summons and its return, and the only matter before us for consideration is the ground stated in that motion why this should be done. We have heretofore set that out verbatim. We repeat that this is the only point that we can notice in this court because it has been settled by numerous decisions of the Supreme Court and of the appellate courts, that' only those questions are to be considered in the appellate court that have been duly raised and presented in the trial court. The statute itself (Sec. 2081, R. S. 1909) so expressly provides. All inquiry as to the grounds of the attachment and as to the cause of action are foreclosed on this appeal, and we are confined solely and entirely to the consideration of the proposition presented by the motion to quash. This must be so, for appellant has very carefully refrained from a general appearance in the case, limiting its appearance both in the motion to quash and in the motion that was afterwards filed to set aside the order overruling that motion. There are two points made against the summons. First, that it should have been directed to the sheriff — 673 — of the county in which it was served, and, second, being a Missouri corporation, defendant can have no residence outside of the State of Missouri and cannot be reached by process outside of this State, even granting that it has no office or place of business or property within this State. The first proposition as to the misdirection of the summons to the sheriff of the city of St. Louis instead of to an officer of Los Angeles county, California, is not well taken. That was a defect which, under the statute, could have been cured in the trial court, if its attention had been called to it. Section 1848, R. S. 1909, provides that the count may, at any time before final judgment, in furtherance of justice, and on sfich terms as may be proper, amend any record, pleading, process, entry, return, or other proceedings, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proven. Section 1850, Revised Statutes 1909, provides that the court shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shajl be reversed or affected by reason of such error of defect. Section 1851, Revised Statutes 1909, provides that the court may, after final judgment rendered in any cause, in furtherance of justice, and on such terms as may be just, “amend in affirmance of such judgment any record, pleading, process, entries, returns or other proceedings in such cause, by adding or striking out the name of a party, or by correcting a mistake in the name of a party, or a mistake in any other respect, — 674 — or by rectifying defects or imperfections in matters of form, and sncb judgment shall not be reversed or annulled therefor.” All these are matters which can be corrected in the trial court. If parties do not choose to have the corrections there made, and judgment goes notwithstanding the errors, the appellate court cannot reverse because of their presence. Section 2119, Revised Statutes 1909, commonly called “the Statute of Jeofails,” so provides. By that section it is enacted that when a verdict shall have been rendered in any cause, the judgment thereon shall not be stayed, nor shall such judgment, nor any judgment after trial or submission, nor any judgment upon confession nihil dicit or upon failure to answer, etc., he reversed, impaired or in any way affected by reason of the following, among other matters or things: First, for want of any writ, original or judicial; second, for any default or defect of process, or for misconceiving any process, or for awarding the same to the wrong officer, or for the want of any suggestion for awarding process, or for any insufficient suggestion. It is true that sections 1848 and 1851, supra, relate more particularly to correction of pleadings, process, etc., in the'trial court, but sections 1850 and 2119, supra, cover proceedings in the appellate courts. We cite all of these sections not only as applicable to the case at bar, but also for the purpose of emphasizing the fact that the whole spirit of our law is against reversing judgments on mere technicalities that tend in no manner to affect due and proper administration of justice and do not go to the real merits of a controversy. We have no disposition, in the light of these statutory provisions and in the light of our own conception of what amounts to due administration of the law and promotion of justice, to narrow these libera] provisions in any way whatever. If the mis — 675 — prisión of the clerk in directing this process to the wrong officer was an error specifically provided against by section 2119, was a matter of any importance, a vital matter, it was within the power of the defendant to have called the attention of the trial court to this error so that that court could have corrected it, and even after judgment, if attention had been called in that court to this defect, it was within the power of the court to have corrected this mere clerical error. We, as an appellate court, are forbidden by sections 1850 and 2119, supra, to reverse for or on account of any of these defects. But even in the absence of these sections, we do not consider that provision of the statute, that the writ is to be directed to the officer of the county who is to serve it, is mandatory in the sense that failure to so direct it renders the process void, and, to sustain the contention of counsel for appellant, we would so have to hold in this case. Our Supreme Court, in a very learned opinion by Judge Macearlane, in the ease of Hall v. Schoenecke, 128 Mo. 661, 31 S. W. 97, commencing at page 668, calling attention to a statute under consideration, observes of it that it is not by its terms mandatory. It is not to be inferred, however, says Judge Macearlane, that the enactment is to be considered absolute only when such express words are.employed as to note such legislative intent. But “where the aim and purpose of the lawmaking power would be plainly defeated if the command to do the thing in a particular manner did not imply an inhibition to do it in any other, no doubt can be maintained as to the mandatory character of the statute,” Judge Macearlane citing for this 23 Am. & Eng. Ency. of Law (1 Ed.), pp. 453, 454. While that judge further says that every section of the statute is mandatory in the sense that it should be observed, and that a willful disregard of a provision of a statute is not to be encouraged, he holds, in effect, — 676 — that a disregard of a provision of the statute does not necessarily make one a criminal or the act done void. That the provision with regard to the officer to whom the writ is to be directed, is not to be held mandatory, is clearly apparent by the provisions of sections 1850 and 2119. The G-eneral Assembly has itself placed a negative on any such construction. We therefore hold that when section 1766* provides that a summons shall be issued, directed to the sheriff of any county in this State or any other State where the president or chief officer of the company may reside .or he found, a misdirection to the sheriff of the city of St. Louis does not render the process in the hands of a foreign officer void; to the contrary, the writ is saved under the provisions of sections 1850 and 2119. The point raised by the motion to quash, and the only point, is that this being a Missouri corporation and having no office in and not found in this State, there is no power or authority by which the courts of our State can reach it. The learned counsel for the appellant claims that a corporation can have no legal existence out of the boundaries of the sovereignty by which it was created, citing Bank of Augusta v. Earle, 13 Peters, 519, and other cases. That proposition is not disputed but it is not germane to the decision of this case. Section 1766 is a plain, statutory provision for service of process on corporations whose officers or place of business cannot be found in this State. It is applicable to domestic corporations; relates to domestic corporations. The return in this case is in compliance with section 1767 of the statute, the officer who served it expressing in his return on whom,, how and when it was executed; his return shows that be served it on the president of this corporation; in fact in their argument, counsel for respondent admit that it was served on Mr. Stillwell, as president. — 677 — We see no reversible error in tbe action of tbe circuit court in overruling the motion to quash. As that is tbe only point open for our consideration, tbe conclusion must be that that action was correct. With its motion disposed of, tbe defendant corporation made default both as to tbe attachment and on tbe merits, and the circuit court very properly, after ascertaining tbe amount due under tbe lease, rendered judgment for that, awarding execution against tbe property at-i tacbed. When tbe defendant corporation elected to stand on its motion and to limit its appearance for that motion, it took tbe risk of that following. That it, through its president, bad notice of tbe pendency of tbe action is clear; Mr. Stillwell, the individual, served by tbe same officer under tbe same writ, came into court and set up bis discharge; but as- president, he challenged the writ and the fact of due service. Casting its fate on tbe correctness of that position, as it bad a right to do, tbe corporation must accept and abide by tbe consequences. Tbe judgment of tbe circuit court should be affirmed. Nortoni, J., concurs. Allen, J., dissents and as be deems tbe decision herein to be contrary to tbe previous decision of tbe Supreme Court in Priest v. Capitain, 236 Mo. 446, 139 S. W. 204, and to other decisions of that court, be asks that tbe case be certified to tbe Supreme Court, which is accordingly done.