Heltzel v. Kansas City, St. Louis & Chicago Railroad , 77 Mo. 482 ( 1883 )

Norton, J.

This suit was commenced under section 8200, Revised Statutes, and sections following, to establish and enforce a lien against the Kansas City, St. Louis & Chicago Railroad Company, for cement sold by plaintiff to Reid & Taylor, sub-contractors in building said road, to be used in the construction thereof. The petition alleges the sale and delivery of several lots of cement amounting in the aggregate to the value of $540, the first lot of which was delivered on the 81st day of May, 1878, and the last the 9th day of September, 1878. It also alleges the filing of the account sued upon in the office of the clerk of the Audrain circuit court within ninety days after the indebtedness accrued, and also service of notice within ninety days after the incurring of the debt, and the commencing of the suit within ninety days after filing said account. The answer was a general denial, and on the trial plaintiffs obtained judgment for $508, which was declared to be a lien on said road. From this defendant has appealed, and the chief ground relied upon for reversal of the judgment is that defendant corporation was not served with notice in the time and manner required by law.

The question as to the sufficiency of the service of notice was raised on the trial by defendant objecting to the introduction in evidence of the following service, viz: “ Served this notice in the city of St. Louis on the 7th day of October, 1878, by delivering a copy thereof to Robert Park in the office of the Kansas City, St. Louis & Chicago Railroad Company, he having charge of said office, the president or other chief officer of said railroad company being absent from the city and could not be found.”

The question as to the manner of serving notices on domestic corporations, so as to create a lien for materials furnished to a contractor to be used in constructing its road, was before this court in the case of Heltzell v. Chicago & Alton R. R. Co., ante, p. 315, and it was held that in the absence of any statute prescribing the manner of serving such notices, the service should be made on the chief officer or managing agent of such corporation, and when it cannot be had on either of such officers, service on any officer whose official relations to the governing body, or managing agent or chief officer of the corporation, would make it his duty to communicate such notice to such body, agent or officer.

Testing the above service offered in evidence by the rule laid down in that case, we must hold it to be wholly insufficient, because it does not appear upon the face of the notice that Robert Park, upon whom it was served, was an officer of said company, or sustained any official relations whatever either to the company, its managing agent or chief officer, nor was it attempted to be shown by other evidence that he had any connection with the company or its officers, but, on the contrary, it was shown that said Park was the secretary of the Louisiana & Mississippi. River Railroad Company, and occupied as such a desk in the office of the defendant corporation, and that he had nothing whatever to do with the business of the defendant' corporation, except that he had desk-room in the office. The court erred in overruling defendant’s objection to the sufficiency of said service and receiving it in evidence, and for this error the judgment will be reversed and cause remanded.

All concur.