State ex rel. Utilities P. & L. Corp. v. Ryan

• Decision Date: 20 November 1935
• Docket Number: No. 34491.,34491.
• Citation: 88 S.W.2d 157
• Parties: STATE OF MISSOURI at the Relation of UTILITIES POWER & LIGHT CORPORATION, a Corporation, Relator, v. O'NEILL RYAN and FRANK C. O'MALLEY, Judges of the Circuit Court of the City of St. Louis.
• Court: Missouri Supreme Court

88 S.W.2d 157

STATE OF MISSOURI at the Relation of UTILITIES POWER & LIGHT CORPORATION, a Corporation, Relator, v. O'NEILL RYAN and FRANK C. O'MALLEY, Judges of the Circuit Court of the City of St. Louis.

No. 34491.

Supreme Court of Missouri.

Court en Banc, November 20, 1935.

Prohibition.

PRELIMINARY RULE MADE ABSOLUTE.

W.T. Ragland and Igoe, Carroll, Higgs & Keefe for relator.

(1) In determining whether the Monheimer suit falls within any of the classes enumerated in the statute (Sec. 739, R.S. 1929) authorizing constructive service, both the statute itself and the attempt to bring the case within it must be strictly construed. Charles v. Morrow, 99 Mo. 638, 12 S.W. 903; Stanton v. Thompson, 234 Mo. 7, 136 S.W. 698; Chilton v. Tam, 235 Mo. 498, 139 S.W. 126; Priest v. Capitain, 236 Mo. 446, 139 S.W. 209. (2) The suit is not within the statute (Sec. 739) either as one for the "enforcement" of a lien upon relator's property (the shares of stock of The Laclede Gas Light Company owned by relator) or as one having for its "immediate object the enforcement or establishment of any lawful right, claim or demand" thereagainst. (a) There is no showing in the plaintiff's petition of any lien, or right to a lien, on the stock in question in favor of The Laclede Gas Light Company on behalf of which plaintiff sues. No such lien or lien right exists either by reason of the fact of relator's nonresidence and its ownership of property having a situs within the territorial jurisdiction of the circuit court — Chapman v. Chapman, 269 Mo. 663, 192 S.W. 451; State ex rel. MacIndoe v. Blair, 238 Mo. 132, 142 S.W. 326; Lindbergh v. Humphrey, 289 Fed. 901; Hanna v. Steadman, 230 N.Y. 326, 130 N.E. 566; 17 R.C.L., p. 597, sec. 3 — or by reason of the alleged liability to The Laclede Gas Light Company of relator as one of its stockholders. Bank of Atchison v. Durfee, 118 Mo. 431, 24 S.W. 133; Brinkerhoff-Farris Trust Co. v. Home Lbr. Co., 118 Mo. 447, 24 S.W. 129; Hope Lbr. Co. v. Stewart, 241 S.W. 675. (b) The suit is not one to try title to the stock of The Laclede Gas Light Company standing in relator's name because: (c) The petition contains no averment of fact challenging relator's title to the stock. The averment that it was acquired without any "valid order" of the Public Service Commission (in violation of Sec. 5195 of the statute requiring the consent of the commission) is nugatory as a mere conclusion — State ex rel. Great Am. Home Savs. Inst. v. Lee, 288 Mo. 679, 233 S.W. 25; Knapp-Stout & Co. v. St. Louis, 156 Mo. 343, 56 S.W. 1104 — especially in view of the decision and judgment of this court affirming the orders of the Public Service Commission by which relator's acquisition of the stock in question was authorized — State ex rel. St. Louis v. Pub. Serv. Comm., 73 S.W. (2d) 393 — and of the statute making the orders of the commission, which have become final, conclusive in all collateral proceedings. Sec. 5238, R.S. 1929. (d) The petition nowhere alleges that The Laclede Gas Light Company, on behalf of which plaintiff sues, has, or claims to have, any right, title or interest in the stock held by relator. (e) The Laclede Gas Light Company has no pecuniary interest whatever with respect to its legally issued and outstanding shares of stock. It is of no concern to it, as a corporation, who owns its shares of stock. Taylor & Co. v. Railroad Co., 122 Fed. 153; Higgins v. Railroad Co., 99 Fed. 640; Kansas City So. Ry. Co. v. Railroad Co., 58 Fed. (2d) 810. (f) Only the State can question the validity of the sale of stock alleged to be violative of the provisions of Section 5195, Revised Statutes 1929. Kansas City So. Ry. Co. v. Railroad Co., 58 Fed. (2d) 810. (3) The suit, considered as a creditor's bill, does not have the requisite characteristics to make it the equivalent in equity of an attachment suit at law. Pendleton v. Perkins, 49 Mo. 565; Coleman v. Hagey, 252 Mo. 102, 158 S.W. 836; Curlee Clothing Co. v. Boxer, 51 S.W. (2d) 894. (4) Even if the suit were one for the enforcement of a lien or the establishment of a lawful right to property, so as to fall within the statute authorizing constructive service, the circuit court would not have acquired jurisdiction over the relator or its property because there has been no seizure, either actual or constructive, of the shares of stock in question so as to bring them under the court's control. Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565; Pennington v. Fourth Natl. Bank, 243 U.S. 271, 37 Sup. Ct. 283; Cooper v. Reynold's Lessee, 10 Wall. 308, 19 L. Ed. 933; Freeman v. Alderson, 119 U.S. 185, 7 Sup. Ct. 165; Beyer v. Continental Trust Co., 63 Mo. App. 521; State ex rel. Kelly v. Trimble, 247 S.W. 191; State ex rel. MacIndoe v. Blair, 238 Mo. 132, 142 S.W. 326; Mayne v. St. L. Union Trust Co., 64 Fed. (2d) 843; Freeman v. Thompson, 53 Mo. 183; Graves v. Smith, 278 Mo. 592, 213 S.W. 130. (5) Relator has entered no such appearance in the case as would give the circuit court jurisdiction over it or its property. (a) The motions filed by relator were in no sense demurrers. They searched the petition for the sole purpose of determining whether the case therein stated was one in which the statute authorized constructive service. Fisher v. Evans, 25 Mo. App. 582; State ex rel. Bowling Green Trust Co. v. Barnett, 245 Mo. 99, 149 S.W. 317; Hinkle v. Lovelace, 204 Mo. 208, 102 S.W. 1015; Jones v. Gould, 149 Fed. 153; Gage v. Riverside Trust Co., 156 Fed. 1002. (b) The motions did not challenge the sufficiency of the petitions with reference to the subject matter of the action, but merely the court's jurisdiction over the res (the shares of stock sought to be affected) and over the relator through that property. Cooper v. Reynold's Lessee, 10 Wall. 308, 19 L. Ed. 933; Davis v. Ry. Co., 217 U.S. 157, 30 Sup. Ct. 463; Hope v. Blair, 105 Mo. 85, 16 S.W. 597; Cook v. Spence, 122 S.W. 341; Eckerle v. Wood, 95 Mo. App. 378; State ex rel. Tighe v. Brown, 23 S.W. (2d) 1093; 4 C.J., p. 1339, sec. 32; 2 R.C.L., pp. 327-328, sec. 7.

Edward A. Haid and Sullivan, Reeder & Finley for respondents; Jones, Hocker, Gladney & Jones of counsel.

(1) Plaintiff's case comes squarely within the contemplation of the provisions of Revised Statutes of 1929, section 739, with respect to the validity of the service by publication, and this court will not consider the sufficiency of plaintiff's petition in this writ in order to rule otherwise. State ex rel. South Mo. Pine Lbr. Co. v. Deering, 180 Mo. 53, 79 S.W. 454; State ex rel. Green v. Henderson, 164 Mo. 347, 64 S.W. 138; State ex rel. Gavin v. Muench, 225 Mo. 210, 124 S.W. 1124; State ex rel. U.S. Fid. & Guar. Co. v. Harty, 276 Mo. 583, 208 S.W. 835. (2) The relator, by appearing in the trial court and questioning its jurisdiction over the subject matter of the suit, has effectively entered its appearance therein and waived the question of the service of process. State ex rel. v. Grimm, 239 Mo. 174; Handy v. Insurance Co., 37 Ohio St. 366; Hill v. Barton, 194 Mo. App. 336; Fitzgerald Const. Co. v. Fitzgerald, 137 U.S. 98; Thames & Mersey Ins. Co. v. United States, 237 U.S. 25; Elliott v. Lawkhead, 43 Ohio, 171, 1 N.E. 580; Perrine v. Knight Templars, 71 Neb. 267, 98 N.W. 842. (3) The trial court has jurisdiction over the subject matter of this action. Trust Co. v. Beet Sugar Co., 150 Fed. 680; Direction Der Disconto-Gesellschaft v. U.S. Steel Corp., 300 Fed. 746; Pac. Natl. Bank v. Eaton, 141 U.S. 234; Richardson v. Busch, 198 Mo. 186; R.S. 1929, sec. 5194; R.S. 1929, sec. 5195, sub. 2; Jellenik v. Huron Copper Min. Co., 177 U.S. 1; Amparo Mining Co. v. Fidelity Trust Co., 75 N.J. Eq. 555; Patterson v. Ry. Co., 76 Conn. 628; Holmes v. Camp, 216 N.Y. 359, 114 N.E. 843; Rogers v. Guaranty Trust Co., 288 U.S. 123; People v. Sturtevant, 9 N.Y. 269; General Inv. Co. v. Railroad Co., 271 U.S. 230; Ex parte Watkins, 7 Pet. 572; Quagon v. Biddle, 5 Fed. (2d) 610; Sander v. Johnston, 11 Fed. (2d) 511. (4) The allegations in plaintiff's petition, respecting the ownership of Laclede stock by relator, are such as to give the trial court jurisdiction of this cause. State ex rel. v. Trace, 237 Mo. 120; State ex rel. v. Thomas, 278 Mo. 98; State ex rel. v. Duncan, 334 Mo. 743; State ex rel. v. Gates, 190 Mo. 553; State ex rel. v. Harris, 334 Mo. 719; Kelly v. Hurt, 61 Mo. 466; O'Donnell v. Mathews, 221 Mo. App. 661; Beattie Mfg. Co. v. Gerardi, 166 Mo. 155; Kilpatrick v. Robert, 278 Mo. 263. (5) The filing of suit by plaintiff against relator, praying for a judgment in favor of The Laclede Gas Light Company, particularly identifying the shares of stock of The Laclede Gas Light Company held in the name of the relator, and asking that a lien be declared on these shares is the equitable counterpart of an attachment, and gives the trial court jurisdiction. Clark v. Brotherhood of Locomotive Firemen, 99 Mo. App. 692; Noell v. Railroad Co., 74 S.W. (2d) 13; Heidritter v. Elizabeth Oil Cloth Co., 112 U.S. 301; Chapman v. Chapman, 269 Mo. 678; Lackland v. Garesche, 56 Mo. 270; Albers v. Bedell, 87 Mo. 184; State ex rel. v. Blair, 238 Mo. 132; Bachman v. Lewis, 27 Mo. App. 88; Brumback v. Weinstein, 37 Mo. App. 523; Lafkowitz v. Jackson, 13 Fed. (2d) 373; Bray v. McClury, 55 Mo. 135; 50 C.J., pp. 504, 507; Slattery v. St. L. & New Orleans Trans. Co., 91 Mo. 217; Boulicault v. Oriel Glass Co., 283 Mo. 247; State ex rel. St. Louis Amus. Co. v. Rosskopf, 330 Mo. 1083.

COLLET, J.

Prohibition to prevent respondent as judge of Division Two of the Circuit Court of the City of St. Louis from further proceedings against relator in the circuit court of that city based upon substituted service, in a cause wherein relator is one of several defendants.

Relator, Utilities Power & Light Corporation, is a Virginia corporation, is not licensed in Missouri and has never engaged in business here. It appears to own a sufficient amount of the common stock of the Laclede Gas Light Company,...