Buddecke v. Garrels
| Decision Date | 02 December 1919 |
| Docket Number | No. 15410.,15410. |
| Citation | 216 S.W. 811,203 Mo. App. 1 |
| Parties | BUDDECKE v. GARRELS |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Thomas C. Hennings, Judge.
Action for libel by William A. Buddecke against William L. Garrels. Judgment for plaintiff, and defendant appeals. Affirmed.
T. Percy Carr, of St. Louis, for appellant. W. B. & Ford W. Thompson, of St. Louis, for respondent.
This case is an action for libel filed in the circuit court of the city of St. Louis, by William A. Buddecke, plaintiff, against William L. Garrels, defendant. The case was tried to a jury, resulting in a verdict in favor of plaintiff for $500 actual damages, and from judgment rendered thereon defendant appeals.
Plaintiff in his petition alleges that he is a resident of the city of St. Louis. The defendant, who is a resident of St. Louis county, was "found" and served in the city of St. Louis. At the return' term following the service upon the defendant, the defendant appeared specially, and moved to quash the sheriff's return, showing service in the city of St. Louis, and as a ground for the quashing of said return the defendant, in said motion to quash, alleged that neither the plaintiff nor the defendant was a resident of the city of St. Louis at the time the suit was brought. Upon the hearing of defendant's motion to quash, the plaintiff was a witness in his own behalf, and testified that he was in fact a resident of the city of St. Louis, and thereupon said motion was overruled, defendant excepting thereto and preserving his exceptions by the usual term bill, but not embodying this exception in his motion for a new trial filed after the case had been heard on its merits.
Defendant's motion to quash having been overruled, defendant was granted time to plead, and in due course filed an answer, setting up several defenses, the first of which was a plea to the jurisdiction of the court, based upon the same ground set up originally in defendant's motion to quash, namely, that the circuit court of the city of St. Louis had no jurisdiction because neither of the parties to the suit was a resident of said city, and specifically alleging, in such plea to the jurisdiction, that the plaintiff was a resident of Washington county. This original answer was subsequently withdrawn and an amended answer filed, in which the same plea to the jurisdiction was again set up as the first defense. Thereupon plaintiff moved to strike out such plea to the jurisdiction from said amended answer on two grounds: First, that the defendant, by filing his answer and amended answer, had entered his appearance, and was thereby precluded from pleading to the jurisdiction; second, that the defendant had, prior to the filing of said answer and amended answer, set up the same matter in his motion to quash and dismiss the writ of summons, and that the court had, after hearing the evidence adduced on said motion to quash, adjudicated the question of the residence of plaintiff, and held it to be in the city of St. Louis, Mo.
The learned trial court sustained plaintiff's motion to strike out defendant's plea to the jurisdiction, the defendant saving his exception in a term bill filed in due course, but defendant failed to assign the action of the court in thus sustaining the plaintiff's motion to strike out the defendant's plea to the jurisdiction as a ground in his motion for new trial filed after the hearing of the case upon its merits.
The defendant next filed his second amended answer, omitting therein his plea to the jurisdiction stricken out by the ruling of the court as above noted.
Some time later the defendant filed a motion to withdraw his second amended answer and for leave to file a third amended answer in lieu thereof, and to reinstate therein his plea to the jurisdiction which the court had stricken out of his first amended answer, on the ground that the defendant had, since the filing of his second amended answer, discovered evidence unknown and unobtainable during the earlier stages of the case, which the defendant alleged would conclusively establish the fact that Mr. Buddecke's residence was in Washington county at the institution of the suit, and that the testimony to the contrary on the part of the plaintiff on the hearing of defendant's motion to quash, to the effect that he was a resident of the city of St. Louis at that time, was false. The motion further sets up that the defendant had never willingly waived his plea to the jurisdiction, or voluntarily submitted himself to the court's jurisdiction, but that the plaintiff had procured the court's action, namely, the overruling of the defendant's motion to quash, by falsely swearing that he was a resident of the city of St. Louis. This motion was duly verified, and defendant in addition filed supplementary affidavits thereto a few days after the filing thereof, which affidavits are intended to support the allegation of the said motion. The court, however, overruled defendant's motion, and refused leave to reinstate such plea to the jurisdiction. Defendant preserved his exception to this ruling of the court by filing his term bill of exceptions, but an examination of defendant's motion for new trial shows that defendant failed to embody this exception therein.
The defendant thereupon, in his endeavor to avail himself of his jurisdictional defense, applied to the Supreme Court of this state for a writ of prohibition, which writ, how ever, was denied. At the trial of the case the defendant again endeavored to raise the question of jurisdiction without success, and saved his exception to the adverse ruling of the court. But the action of the court in thus overruling this jurisdictional question raised by the defendant at the trial is not assigned as one of the grounds set out in the defendant's motion for new trial, filed at the conclusion of the case upon the merits.
We will not burden this opinion with a statement of the facts in the case, in that the several assignments...
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