Columbia Brewery Co. v. Forgey
| Decision Date | 22 June 1909 |
| Citation | 140 Mo. App. 605,120 S.W. 625 |
| Parties | COLUMBIA BREWERY CO. v. FORGEY. |
| Court | Missouri Court of Appeals |
Rev. St. 1899, § 562 (Ann. St. 1906, p. 591), provides that, except as otherwise provided,
actions shall be brought in the county wherein the defendant resides, or in the county in which plaintiff resides and the defendant may be found. Held that, where the court had jurisdiction of the subject-matter of an action brought in a county in which neither plaintiff nor defendant resided, and defendant appeared to the merits, it also had jurisdiction of the parties, and was authorized to proceed to judgment.
2. COURTS (§ 117) — RECORD — VERITY.
Recitals of record that the parties appeared and by agreement the cause was reset for trial at the foot of the docket, and that on appearance and by agreement of parties the cause was continued, imported absolute verity.
3. APPEARANCE (§ 9) — WHAT CONSTITUTES — EFFECT.
The filing of an answer to the merits, or the taking of a change of venue, or appearance for the purpose of setting the cause at the foot of the docket by agreement, or to have the cause continued from one term to another, constitutes a general appearance to the merits, and confers jurisdiction over the person of defendant.
Appeal from Circuit Court, Pike County; David H. Eby, Judge.
Action by the Columbia Brewery Company against Henry A. Forgey. Judgment for defendant, and plaintiff appeals. Reversed and remanded.
E. W. Major and Charles Fensky, for appellant. Dempsey & McGinnis, for respondent.
This is a suit on several promissory notes. The merits of the cause were not inquired into, however, and the character of the action is only referred to for the purpose of determining whether the court was possessed of jurisdiction over the subject-matter. Defendant interposed a plea in abatement, challenging the jurisdiction of the court over his person. On a hearing the court sustained the plea in abatement, and gave judgment for defendant accordingly. Plaintiff prosecutes the appeal.
The testimony tended to prove that the plaintiff is a corporation, and was at all times a resident of the city of St. Louis, while the defendant was and is a resident of Calloway county in this state. Defendant was temporarily in Pike county, probably visiting, and while there plaintiff instituted this suit against him in the circuit court of that county. Defendant was properly served with process of summons, and, as stated, at the return term filed his answer, which contained a plea to the jurisdiction of the court over his person solely. As stated, the evidence shows conclusively that plaintiff was at all times a resident of the city of St. Louis, and the defendant was not a resident of Pike county, in which he was sued, but, on the contrary, resided in Calloway county. Our statute (section 562, Rev. St. 1899 [Ann. St. 1906, p. 591]), in so far as pertinent here, provides as follows: "Suits instituted by summons shall, except as otherwise provided by law, be brought: First, when the defendant is a resident of the state, either within the county within which the defendant resides, or in the county within which the plaintiff resides and the defendant may be found," etc. It appearing from the proof that the plaintiff resided in St. Louis, and the defendant in Calloway, county, the court sustained the plea in abatement, in keeping with the provisions of the statute quoted, for the plaintiff was sued in a county other than that in which he resided, and he was not found and sued in the county in which plaintiff resided.
If this were the entire case, the ruling would have been proper, indeed, as has been decided in numerous cases. Peery v. Harper, 42 Mo. 131; Thompson v. Bronson, 17 Mo. App. 456; Brackett v. Brackett, 61 Mo. 221. There was an appearance by defendant touching the merits, however, and this fact invokes a rule of decision which must control the judgment of the court. It should nevertheless be suggested, if this were a new question — that is, if the interpretation of the statute above quoted was entirely free from adjudication by the superior courts of the state — it might well be said that it presents in this instance more particularly a question of venue than that of jurisdiction over the person, for it appears the statute commands that suits instituted by summons shall be brought, etc. In view of this language it may be reasoned that no jurisdiction is conferred in the first instance thereby, except the suit shall be brought according to the venue therein designated. There are some authorities among our decided cases which point as though the court entertained such an opinion. For instance, in Peery v. Harper, 42 Mo. 131, the Supreme Court, in an opinion by Judge Wagner, employed broad language indeed, touching the power of the court to proceed in a case where neither the plaintiff nor defendant resided in the county where the suit was instituted. Judge Wagner said: "If the answer was true, it divested the court of all jurisdiction." And again, in the concluding lines of the opinion, it is said: "If the matter alleged in the answer was true, it constituted a complete bar to further proceedings in the cause." When careful attention is given to the facts of that case, however, it appears it presented no question other than the case of a suit being instituted in a county in which neither of the parties resided, both of whom were residents of the state. That was an attachment suit instituted in Polk county against Harper, the defendant, who resided in Saline county, and it appears the plaintiff did not reside in Polk county. Harper appeared and filed his plea in abatement to the attachment, and, upon a trial being had, defeated the attachment. Of course there was nothing involved in this which tended to enter an appearance in the cause on its merits. After the attachment had been defeated, Harper filed his plea in abatement to the suit on the merits, and presented the sole question that the suit could not be maintained in Polk county when neither plaintiff nor the defendant resided therein. This plea was sustained by the Supreme Court, and, as stated, very broad language was employed in the opinion. However, there is nothing in the case tending to show that the defendant submitted to the jurisdiction of the court over his person, and of course it was rightly decided.
Later, the case of Brackett v. Brackett was presented to our Supreme Court. It is first reported in 53 Mo. 265, and on the second appeal in 61 Mo. 221. On the first appeal the facts were insufficiently disclosed in the record to present the question now in judgment. The second appeal, however, in that case presented a state of facts in which it appeared neither plaintiff nor defendant resided in Pettis county, wherein the suit was instituted. It appeared plaintiff instituted the suit in Pettis county against the defendant, who resided in St. Louis. It is not stated in the opinion where the plaintiff resided, but it is clear therefrom that he was not a resident of Pettis county, and the circuit court of that county obtained jurisdiction in the first instance because of the fact that it involved an attachment of real estate situated in Pettis county. The attachment having failed, the jurisdiction of the court, predicated on that score, failed as well. By referring to the report of that case on the first appeal (Brackett v....
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