26 Mo.App. 92 (Mo.App. 1887)
J. J. ROBERTS ET AL., ADMINISTRATORS, Respondents,
STATE INSURANCE COMPANY, Appellant.
Court of Appeals of Missouri, St. Louis.
May 3, 1887
APPEAL from the Howell County Circuit Court, J. R. WOODSIDE, Judge.
Reversed and dismissed.
GOODE & CRAVENS, for the appellant:
" Suits against corporations shall be commenced either in the county where the cause of action accrued, or in any county where such corporations shall have, or usually keep, an office or agent for the transaction of their usual and customary business." Rev. Stat., sect. 750; Mikel v. Railroad, 54 Mo. 145; Peery v. Harper, 42 Mo. 131. Besides, neither party resided in Howell county, which would be fatal to the jurisdiction of the court which tried the case. Brackett v. Brackett, 61 Mo. 221; Hem bree v. Campbell, 8 Mo. 572; Peery v. Harper, 42 Mo. 131. The objection was properly raised by the answer, and could not be waived. Peery v. Harper, 42 Mo. 131; Smith v. Simpson, 80 Mo. 639. It is proper to raise the issue of want of jurisdiction of a cause by answer. Hembree v. Campbell, 8 Mo. 572; Stone v. Corbett, 10 Mo. 350. The representations in this case were warranties. Loehner v. Ins. Co., 17 Mo. 249.
LIVINGSTON & PITTS, and L. B. WOODSIDE, for the respondents:
The appearance of the defendant, by a plea to the merits, is universally held to be a waiver of jurisdiction over the person. Peter v. Railroad, 59 Mo. 406; Hembree v. Campbell, 8 Mo. 572. The filing of the defendant's original answer, pleading therein solely to the merits, was a waiver of objections to the jurisdiction of the court. Rippstein v. Ins. Co., 57 Mo. 87. If the representation as to title is substantially true, and the liens, or rights, of the insurer are not affected, the policy will be upheld, notwithstanding the representation is not strictly and formally accurate. Allen v. Ins. Co., 5 Gray 384. The appellant put its refusal to pay loss on different and distinct grounds. This waives the necessity of preliminary proof. Flanders on Insurance, sect. 23, p. 593; McComas v. Life Ins. Co., 56 Mo. 575. The insurance company is estopped from setting up defective proofs in this case. Flanders on Insurance, sect. 25, p. 598. This suit was commenced in the circuit court, which is a court of general jurisdiction, and every presumption is in favor of the jurisdiction of the court; and this court should, therefore, presume, with no evidence to the contrary, that the defendant did have, or had usually kept, an office or agent in Howell county, for the transaction of its usual or customary business. Shell v. Leland, 45 Mo. 290; Gibson v. Vaughn, 61 Mo. 418. In courts of inferior jurisdiction the rule is otherwise. Hansberger v. Railroad, 43 Mo. 196; McCloon v. Beattie, 46 Mo. 391.