Electrolytic Chlorine Co. v. Wallace & Tiernan Co.

• Decision Date: 05 September 1931
• Citation: 41 S.W.2d 1049,328 Mo. 782
• Parties: Electrolytic Chlorine Company, Appellant, v. Wallace & Tiernan Company, Electro Bleaching Gas Company, John A. Strang and Roger W. Pratt
• Court: Missouri Supreme Court

41 S.W.2d 1049

328 Mo. 782

Electrolytic Chlorine Company, Appellant, v. Wallace & Tiernan Company, Electro Bleaching Gas Company, John A. Strang and Roger W. Pratt

Supreme Court of Missouri

September 5, 1931

Appeal from Jackson Circuit Court; Hon. Clarence A. Burney Judge.

Affirmed.

E C. Hamilton, C. W. Price, A. N. Gossett, James N. Beery and Wm. H. Allen for appellant.

(1) The court below had jurisdiction of all the parties, and the failure and refusal of the respondents Electro Bleaching Gas Company, John A. Strang and Roger W. Pratt to plead or answer to appellant's petition, warranted the rendering of a judgment by nil dicit against those so defaulting. State ex rel. v. Sale, 232 Mo. 176; Brown Construction Co. v. McArthur Bros., 236 Mo. 41; Robinson v. Lawson, 26 Mo. 69; Sec. 1528, R. S 1919; Dierks & Sons Lumber Co. v. Taylor (K. C. Ct. App.), 296 S.W. 180. (2) The fact that there were subsisting judgments against respondents Electro Bleaching Gas Company, John A. Strang and Roger W. Pratt, which the court had refused to vacate after motion filed and hearing thereon, rendered the verdict in favor of those three respondents, and the judgment based thereon, a nullity, and the court should have set the same aside, and granted the appellant a new trial.

David M. Proctor and V. E. Phillips for respondents Wallace & Tiernan Co., John A. Strang and Roger W. Pratt.

(1) The judgment should be affirmed because the record shows a finding against plaintiff on every issue, including damages; hence plaintiff never proved a cause of action and a general verdict in favor of all defendants was correct. This court will not reverse the judgment of any court unless the record shows error materially affecting the merits of the action. Sec. 1062, R. S. 1929; 17 C. J. 1046; 34 C. J. 152; Adderton v. Collier, 32 Mo. 507; Heer v. Citizens Ry. Co., 41 Mo.App. 63; Berkson v. Cable Ry. Co., 144 Mo. 211; Gate City Bank v. Strother, 188 Mo.App. 216; Wolf v. Fire Ins. Co., 219 Mo.App. 307; Hughes v. Ry. Co., 309 Mo. 560, 274 S.W. 711; McClure v. Hall, 19 Wend. (N. Y.) 25. (2) The contention of appellant that a verdict in favor of all the defendants is erroneous and contrary to the record was not urged when the verdict was rendered. Such objection cannot be raised by a motion for a new trial, and hence is not properly before this court for review. 38 Cyc. 1904; Dixon v. Atkinson, 86 Mo.App. 30; K. C. Masonic Temple Co. v. Young, 179 Mo.App. 279; Midwest Natl. Bk. & Trust Co. v. Parker Corn Co., 211 Mo.App. 419; Southern Mo. & Ark. Railroad Co. v. Wyatt, 223 Mo. 357; Longworth v. Kavanaugh, 286 Mo. 573. (3) The record discloses no valid default judgments against defendants John A. Strang and Roger W. Pratt, or either of them, in that they were not in default at any time. Glover v. Amer. Casualty Ins. & Security Co., 130 Mo. 187. There was no valid default judgment against the defendant Electro Bleaching Gas Company, for no jurisdiction was acquired over it, it being a foreign corporation not served within the State, and the court did not acquire jurisdiction by reason of its having joined in a petition for removal to the Federal court. Michigan Central Railroad Co. v. Mix, 278 U.S. 492.

Sturgis, C. Ferguson and Hude, CC., concur.

OPINION

STURGIS

This is a suit for damages in tort by plaintiff, an alleged Oklahoma corporation, against two other corporations one of New York and the other of New Jersey, all engaged in the same line of business, to-wit, manufacturing and selling appliances and apparatus for purifying water, principally for supplying cities and towns. The two individual defendants are employees of one or both corporate defendants and reside at Kansas City, Missouri. The first petition filed denominated the cause of action as slander of title, contains thirteen counts, the first twelve each asking damages in the sum of $ 375,000 actual, and $ 375,000 punitive damages, and the thirteenth asking for injunctive relief against the unlawful practices of the defendants. The plaintiff's business is described as manufacturing, selling and installing an apparatus, machine and process for the purification of water and sewage by means of a mixture of air, gases and vapor, known as the Williams Cell or Williams Process. The corporate defendants were working together in a similar line of business, their apparatus and process being under a patent known as the Ornstein patent, which was owned by the Electro Bleaching Gas Company, and was being sold and put in use by defendant Wallace & Tiernan Company. The plaintiff was a new company endeavoring to invade the field controlled by the defendant companies and was a prospective business rival. The gist of this action is that the defendants conspired and combined to destroy plaintiff's business and prevent same from growing, by unfair and dishonest means, principally in setting up and publishing to prospective purchasers and the trade in general the false claim that the apparatus and process used by plaintiff was an infringement on the patent of the defendant and that anyone using plaintiff's apparatus and process would subject himself to a suit and large damages for infringement of such patent. The basis of each process was the use of chlorine gas and this gave color to the claimed infringement. Plaintiff claims that its apparatus and process is in no way an infringement on defendant's patented apparatus and process and that defendants' claim was known by them to be false and was not made in good faith, but solely to destroy plaintiff's business and deter prospective customers from buying and using its products, though a superior and cheaper process.

The two corporation defendants are not residents of this State, and claim, especially the Bleaching Company, that it was not doing business in this State except as interstate commerce and could not be lawfully sued or be served with process here. Defendants' first move, therefore, was to remove the case to the Federal court, limiting their appearance to that purpose only, claiming that the individual defendants were fraudulently joined as defendants for the sole purpose of preventing a removal to the Federal court. The Federal court overruled this contention and remanded the case to the Circuit Court of Jackson County at Independence, where it originated.

Thereafter such proceedings were had in that court on motions of various kinds and demurrers, joint and several, on behalf of the defendants other than the Bleaching Gas Company, some sustained but mostly overruled, that plaintiff filed in that court its fourth amended petition and then took and was granted a change of venue to Division No. 4 of the same circuit court, at Kansas City. Then began another series of motions and demurrers, general and specific, joint and several, by the three defendants mentioned, until one of them took a change of venue and the cause went to Division No. 6 of that circuit court, but not till after the court had entered judgment in Division No. 4 by default against the two individual defendants "for want of pleadings responsive to plaintiff's last amended petition." A motion to set aside this default was filed, transferred with the case to Division No. 6, and there finally overruled. Then the defendant Wallace & Tiernan Company filed its answer, coupled with a plea to the court's jurisdiction based on its doing business in this State solely as interstate commerce.

This brought the case to trial in Division No. 6 of the Circuit Court of Jackson County at Kansas City in May, 1928. The situation then was that judgment by default or nil dicit had been entered against the two individual defendants, Strang and Pratt. The defendant Bleaching Gas Company had not been served with any process and had never appeared in the case except to join in the unsuccessful application for removal to the Federal court, and no answer was on file except that of defendant Wallace & Tiernan Company. A jury was called to try the case on May 24, 1928, and after it was sworn and the trial commenced, the plaintiff on May 28, 1928, raised the point that the defendant Electro Bleaching Gas Company had entered its general appearance by joining in the application for removal to the Federal Court and was now in default for want of any pleading. The court thereupon entered a judgment by default against that defendant and the trial proceeded without any apparent understanding as to what was being tried, except that the default judgment recited that "the damages prayed for in said fourth amended petition to be ascertained and determined upon the trial." The trial lasted a month, but ended by the jury bringing in a verdict finding "for the defendants," and judgment was entered accordingly "that plaintiff take nothing by its action herein."

The plaintiff has appealed the case to this court, but limits its appeal to matters of record proper only. There is no showing that any final bill of exceptions was filed. None of the evidence produced at the trial and none of the instructions to the jury, given or refused, are in this record. We have no means of knowing what was really tried or submitted to the jury. The appellant in its statement of the case says that the case is submitted here on the face of the record proper. As said in a similar case, Montz v Moran, 263 Mo. 252, 256: "Defendant thereupon appealed, taking time till the next term of the court nisi to file his bill of exceptions, but neglecting so to do in time given to him, or at any other time, is here now solely upon a bare and most meager record proper." Notwithstanding this statement and the fact that nothing is shown as to filing a bill of exceptions by appellant, reference is made in the statement and argument to matters which can be...