Opinion
No. 21882.
June 1, 1953.
APPEAL FROM THE JACKSON CIRCUIT COURT, JACKSON COUNTY, JOHN F. COOK, J.
Not to be published in State Reports.
Lewis W. Sanders, McCann Sanders, Kansas City, for appellant.
J. K. Owens, Kansas City, for respondent.
This is an appeal from a judgment of the circuit court sustaining a motion to quash garnishment issued against Merchants Bank of Kansas City, on a judgment in favor of Kenneth E. Garrison, plaintiff, against The American Cab Company, defendant. The judgment was rendered in magistrate court.
Plaintiff sued for damages growing out of an automobile collision. He named as defendant "The American Cab Co.," and J. Hanna Loeffler, alleged agent of "The American Cab Co." Petition was filed October 8, 1951. Summons was issued, returnable October 31, 1951. The constable made return as having served same on "American Cab * * * Serv Tom Manzella Owner." The record is silent as to whether or not any parties appeared on October 31, and no proceedings are recorded.
The record shows that plaintiff wrote the magistrate, under date of November 1, 1951, stating that he understood that defendant had not been served and that the return date had expired. He requested issuance of alias summons, which was issued November 2, 1951, returnable November 27, 1951. Constable's return thereon, as to defendant "American Cab Co.," shows: "Served John Manzella." (Italics ours.)
The magistrate's record shows that, on November 27, 1951, plaintiff appeared; that defendant defaulted; that the cause was dismissed as to defendant Loeffler; and that judgment, in the amount of $500, was rendered in favor of plaintiff against defendant, The American Cab Co.
On December 19, 1951, summons of garnishment was issued to Merchants Bank, whereby it was sought to garnish the funds of The American Cab Company. Garnishee answered and denied having in its custody any funds belonging to said defendant. On January 18, 1952, summons of garnishment was issued and, later, served on Merchants Bank, whereby it was sought to garnish the account of "The American Cab Insurance Fund." Upon motion of Merchants Bank the writ was quashed.
Appeal was taken to circuit court where Merchants Bank moved to quash for the reason the judgment was void on its face. The motion was sustained. Plaintiff appealed.
Plaintiff urges that when a verdict is once rendered it shall not be stayed, reversed, or impaired by reason of mistake in the name of any person if the correct name "* * * once rightly appears in any of the pleadings or proceedings", citing Section 511.260 RSMo 1939, V.A.M.S.
There is nothing in the record to indicate who or what "The American Cab Co.," is. There is nothing to indicate that it is a corporation, a quasi corporation, or a natural person. It must be one or the other, in order that suit may be maintained. Parker v. Unemployment Compensation Commission, 358 Mo. 365, 214 S.W.2d 529, 534. The constable's return recites that service was had on "The American Cab Co.," by "serv Tom Manzella owner." However, if such recital were sufficient to identify defendant as a legal entity, the proceedings as to "Tom Manzella" have been abandoned. Lawyers Co-operative Publishing Company v. Sleater, Mo.App., 130 S.W.2d 192.
"The American Cab Co.," is not shown of record, or in any manner, to be a legal entity. Hence, the court had no power to render this judgment.
"The American Cab Insurance Fund," mentioned in the proceedings wherein the motion to quash was sustained, was an innovation to the record. If it is a legal entity, it had not been a party to these proceedings upon which the judgment was founded.
Giddens v. Bankers' Guaranty Life Company, 225 Mo.App. 742, 37 S.W.2d 658, and Green v. Strother, 201 Mo.App. 418, 212 S.W. 399, cited by plaintiff, hold that it can be shown that a person sued by one name is, in fact, the same identical person actually known by another name. However, the principle dealt with has no application to the facts in this case. No evidence of identity was offered, nor did anyone appear for defendant, American Cab Co., before final judgment. In fact, no one has ever appeared for it, so far as is disclosed by the record.
The judgment should be affirmed.
BOUR, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is affirmed.
All concur.