State ex rel. U.S. Fire Ins. Co. v. Terte

• Decision Date: 01 November 1943
• Docket Number: 38424
• Parties: State of Missouri at the relation of United States Fire Insurance Company, a Corporation, Relator, v. Hon. Ben Terte, Judge of the Circuit Court of Jackson County, Missouri at Kansas City
• Court: Missouri Supreme Court

176 S.W.2d 25

351 Mo. 1089

State of Missouri at the relation of United States Fire Insurance Company, a Corporation, Relator, v. Hon. Ben Terte, Judge of the Circuit Court of Jackson County, Missouri at Kansas City

No. 38424

Supreme Court of Missouri

November 1, 1943

Writ quashed.

John W. Hudson and S. L. Trusty for relator.

(1) The Supreme Court has jurisdiction over all inferior courts against whom mandamus would lie from the Supreme Court to compel them to perform their duties. State ex rel Lamport v. Robinson, 257 Mo. 584, 165 S.W. 997; State ex rel. Fielder v. Kirkwood, 138 S.W.2d 1009; State ex rel. Townsend v. Holtcamp, 55 S.W.2d 428 429; State ex rel. v. Phillips, 97 Mo. 331, 10 S.W 855, 3 L. R. A. 476; State ex rel. Snow v. Homer, 249 Mo. 58, 155 S.W. 405; State ex rel. General Motors v Brown, 48 S.W.2d 857; State ex rel. v. Shackelford, 263 Mo. 52, 172 S.W. 347; State ex rel. Case v. Seehorn, 283 Mo. 508, 223 S.W. 664. (2) A circuit court of concurrent jurisdiction first acquiring jurisdiction of the parties by reason of service on defendant and having jurisdiction of the subject matter, retains complete and exclusive jurisdiction until the issues are fully determined and the matter finally disposed of. State ex rel. Davis v. Ellison, 208 S.W. 439; Julian v. Commercial Assur. Co., 279 S.W. 740; State ex rel. Sullivan v. Reynolds, 107 S.W. 487; Aetna Life Ins. Co. v. Martin, 108 F.2d 824. (3) Defendant's demurrer to plaintiff's petition having been denied, and defendant thereafter having answered, the question raised by the demurrer cannot be considered on subsequent motion by a judge of the same court. State v. Randazzo, 300 S.W. 755; Conkling v. Henry Lbr. Co., 34 S.W.2d 990. (4) The trial court has not any discretion as to whether it will assume jurisdiction of a complaint instituted under the Declaratory Judgment Act. City of Joplin v. Jasper County, 161 S.W.2d 411; Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461; Aetna Life Ins. Co. of Hartford v. Martin, 108 F.2d 824; New York Life Ins. Co. v. Roe, 102 F.2d 28; Carpenter v. Edmonson, 92 F.2d 895; Western Casualty & Surety Co. v. Beverforden, 93 F.2d 166.

O. J. Adams and J. M. Loomis for respondent.

(1) Motion to stay proceedings is within the judicial discretion of the trial court. 1 C. J. S., p. 1405; Samuel Goldwyn, Inc., v. United Artists Corp., 113 F.2d 703; Mutual Life Ins. Co. of N. Y. v. Brannen, 31 F.Supp. 123; Maryland Cas. Co. v. Consumers Finance Service of Pa., 23 F.Supp. 433; Interstate Cotton Oil Refining Co. v. Refining, Inc., 22 F.Supp. 678; 26 Washington U. Law Quarterly, St. Louis, pp. 468-491. (2) Mandamus will not lie where a matter is discretionary. Gehner v. Thompson, 293 S.W. 391, 316 Mo. 1169; State ex rel. Betts v. McGowan, 1 S.W. 208, 89 Mo. 156; State ex rel. Union Elec. L. & P. Co. v. Grimm, 119 S.W. 626, 220 Mo. 483; State ex rel. Scanland v. Thompson, 187 S.W. 804, 196 Mo.App. 12; State ex rel. Taylor v. Bell, 69 S.W.2d 320, 228 Mo.App. 481; Baker v. Tener, 112 S.W.2d 351; State ex rel. Whitehead v. Wenom, 32 S.W.2d 59, 326 Mo. 352; Corley v. Montgomery, 46 S.W.2d 283, 226 Mo.App. 795; State ex rel. Dolman v. Dickey, 280 Mo. 536, 219 S.W. 363; State ex rel. Shartel v. Humphreys, 93 S.W.2d 924, 338 Mo. 1091; State ex rel. Miller v. Smith, 120 S.W.2d 184. (3) Declaratory Judgment Act, R. S. 1939, Sections 1126, etc., is not a shortcut to determine cases where an adequate legal remedy exists. State ex rel. K. C. Bridge Co. v. Terte, 131 S.W.2d 587; City of Joplin v. Jasper County, 161 S.W.2d 411, 349 Mo. 441; 26 Washington U. Law Quarterly, St. Louis, p. 482; Liberty Mutual v. Jones, 130 S.W.2d 945, 344 Mo. 932.

OPINION

Ellison, J.

Original proceeding in mandamus to compel the respondent circuit judge to take jurisdiction of a declaratory judgment suit. The suit was filed by the relator Fire Insurance Company in Jackson County on April 14, 1941, against Eva F. Hunt. It sought a declaration of the rights of the parties under a $ 1000 fire insurance policy theretofore issued by relator to said defendant, covering a building on two lots in Breckenridge, Missouri, which had recently been totally destroyed by fire. About two weeks after the institution of the declaratory judgment suit the defendant Eva Hunt brought a separate action against relator to recover on the same policy in the circuit court of Caldwell County where the property was located. Thereafter, in the Jackson County circuit court she demurred, filed answer, and then moved to dismiss relator's declaratory judgment suit, in each instance challenging the court's jurisdiction thereover. The demurrer and motion were overruled, whereupon she filed a motion to stay proceedings in that suit until her action in Caldwell County on the insurance policy had been disposed of. That motion was sustained by the respondent judge.

The relator Insurance Company then brought this mandamus proceeding, contending respondent's sustention of defendant Hunt's motion to stay proceedings in the declaratory judgment suit was tantamount to a refusal to take jurisdiction thereof. The respondent judge makes return denying that he had refused to take jurisdiction of the suit and alleging to the contrary that he did accept jurisdiction; but that he sustained said motion to stay proceedings therein in the exercise of his judicial discretion, because of the pendency of defendant Hunt's action on the policy in Caldwell county, and because he believed relator's suit for a declaratory judgment in his court was not brought in good faith, but for the purpose of preventing defendant Hunt from having her action on the policy in Caldwell county tried to a jury.

The foregoing is an outline of the ultimate facts, but a few others should be stated for a better understanding of the case. It is conceded that the same parties, property and insurance policy are involved in both cases; and that the ultimate question in both is whether the relator is liable to defendant Hunt on the policy. There was a clause in the policy reciting that it should be void if the interest of the insured in the land were other than unconditional and sole ownership in fee simple, or if any change, except by her death, should take place in her interest, title or possession. The relator's petition in the declaratory judgment suit alleged the foregoing, and that some two weeks or more before the fire defendant Hunt had entered into a written contract for the sale of the property, received a down payment on the purchase price, and placed the vendee in possession. For that reason relator disclaimed liability, averring defendant Hunt had no insurable interest in the property because of the aforesaid policy provision; but that she claimed relator was liable for the full amount, in consequence of which an actual controversy existed between them. Then followed the prayer for a declaratory adjudication of "the rights, liability and responsibility of the parties" under the policy, and for general relief. There was no prayer for cancellation of the policy, or for affirmative, injunctive or other coercive relief.

Defendant Hunt by her answer denied having made the sale contract; affirmed the policy was binding; charged vexatious delay; asserted no controversy existed between the parties within the meaning of the Declaratory Judgment Act, over which respondent could exercise jurisdiction to grant declaratory relief; claimed the right to a jury trial (evidently meaning in her Caldwell county action); and alleged the pendency of that action where relator could make its defense. The prayer of the answer was that relator be denied declaratory relief, and that she be discharged with her costs. She asked no money judgment or executory process.

Relator's legal theory is as follows. The circuit courts of Jackson county and Caldwell county were of coordinate jurisdiction. Relator's suit for a declaratory judgment was instituted first in the former court and service of process obtained. Therefore when the respondent judge of that court sustained defendant Hunt's motion to stay proceedings pending the outcome of her action on the policy later filed in the Caldwell county circuit court, he was in effect refusing to take jurisdiction of relator's suit for a declaratory judgment -- this because the court which first acquires jurisdiction of the parties has the right of way and should retain complete and exclusive jurisdiction until the issues are fully determined. (Relator filed an answer in defendant Hunt's Caldwell county action, setting out the same legal contentions and praying that proceedings therein be stayed pending the determination of the declaratory judgment suit in Jackson county.)

It is evident from respondent's rulings that he was not refusing to take jurisdiction of the declaratory judgment suit, or at least did not so intend. Three times defendant Hunt attempted unsuccessfully to challenge his right to try the cause. First, she demurred on the ground that there was another action pending between the same parties for the same cause, and respondent overruled the demurrer. Next her answer reiterated that respondent was without jurisdiction to grant relief under the Declaratory Judgment Act, because of her action pending in Caldwell county where relator's defenses could be asserted. And thirdly, she filed a motion to dismiss the declaratory judgment suit on the ground that under the facts respondent had no jurisdiction of that form of proceeding, and that by the entertainment thereof he would be denying her the right of jury trial in the Caldwell county action. Respondent overruled that motion, but suggested that if she would file a motion to stay proceedings the court would sustain it, which was done.

In view of this case history...