Curfman v. Fidelity & Deposit Company of Maryland
| Decision Date | 25 November 1912 |
| Citation | 152 S.W. 126,167 Mo.App. 507 |
| Parties | EDWIN C. CURFMAN, Respondent, v. FIDELITY & DEPOSIT COMPANY OF MARYLAND, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Nodaway Circuit Court.--Hon. Wm. C. Ellison, Judge.
AFFIRMED.
Judgment affirmed.
New & Krauthoff, Arthur Miller and R. L. McDougal for appellant.
A. F Harvey for respondent.
--The board of regents of the fifth district normal school, at Maryville, Missouri, were constructing a school building at or near that city in October, 1909, and let a contract to D E. Marshall & Co., a partnership composed of D. E. Marshall and O. M. Evans, for part construction thereof. The board required these contractors to execute a bond, with surety that they would comply with their contract and pay for all labor and material going into the building. In compliance with this requirement, they executed a bond with the Fidelity and Deposit Company of Maryland as surety. This corporation of the State of Maryland was authorized to execute such bonds by the insurance laws of this State; and in compliance with those laws it authorized the State Insurance Superintendent of Missouri, located at the State Capitol in Cole county, as its agent, to receive or accept service in all actions arising in the courts in any county in this State. [Sec. 7042, R. S. 1909.] In the course of construction of the school, Marshall & Co. failed to pay plaintiff for certain material bought of him for the building and in consequence of such failure plaintiff instituted this action in the Nodaway County Circuit Court. Both Marshall and Evans resided in Jackson county, Missouri, and summons was issued and served upon them in that county. A summons was also issued against the Fidelity and Deposit Company of Maryland, directed to the sheriff of Cole county, for service upon the State Insurance Superintendent and service was had. Pleas in abatement were filed at the November term of court, jointly by Marshall and Evans and separately by the surety company, the appearance of the parties being limited to that purpose. The ground alleged for abatement was that the defendant surety company was a nonresident of the State and that the other defendants were nonresidents of Nodaway county and that neither of them was found in such county. During the November term, on the 24th of that month, the case was called, when plaintiff dismissed as to Marshall and Evans. The surety company made default, whereupon, a jury being waived by plaintiff, evidence was heard on plaintiff's claim and judgment rendered for the penalty of the bond and the damages assessed to plaintiff at $ 935.
In the following month (December 18) the surety company, "appearing for that purpose only, suggests to the court that of its own motion, it set aside the judgment in the cause," and for reasons therefor stated that the action was not properly brought in Nodaway county, since Marshall and Evans were not residents of the county and the surety company was a nonresident, and none of them was found in that county, "and that neither of said defendants were served in this county as required by the first clause of Sec. 1751, R. S. 1909."
The clerk of the court indorsed a filing on this suggestion as thus written by the surety company, but no notice was given of its filing and the court's attention was not called to it. Afterwards, on the 26th of January, 1912, execution was issued on the judgment.
At the February, 1912, term, being the next term after the judgment was rendered, defendant surety company called up its suggestions filed at the last term, as above mentioned, and they were overruled by the court.
On the first of March, 1912, during the February term, defendant surety company filed an amended or supplementary motion to set aside the judgment rendered against it at the former term as above stated, and afterwards on the 9th of March filed its motion to quash the execution issued as stated. Both these motions were overruled, and this appeal was taken from the order of the court refusing to set aside the judgment and refusing to quash the execution.
The record in the case is somewhat voluminious but the questions decisive of the appeal clearly ought to be answered in favor of plaintiff. The position taken by defendants at the start and insisted upon on all occasions afterwards, and upon which is really built all complaint, seems plainly erroneous. That is, that the trial court did not have jurisdiction of the defendants so as to render a valid judgment in the cause. This idea is based altogether upon the assumption that the action could not be brought in Nodaway county unless all of the defendants were nonresidents as provided by the fourth clause of sec. 1751, R. S. 1909. And the further assumption that the surety company was a nonresident and that therefore since Marshall and Evans were residents of Jackson county, the suit should have been brought in the latter county as provided by the third clause of that section. This position of defendants leaves out of view the provisions of section 7042, which direct that service may be had on the Insurance Superintendent in an action begun in any county in the State and that such service shall be binding and deemed personal. For the purposes of venue in civil actions against the defendant surety company, it was a resident of Nodaway county, and the circumstance that the writ of summons was issued to and served in Cole county, the official residence of the Superintendent of Insurance, can make no difference under the provisions of the statute above mentioned. [State ex rel. v. Grimm, 239 Mo. 135, 166, 143 S.W. 483; Meyer v. Ins. Co., 184 Mo. 481, 83 S.W. 479.] The action being properly brought against the surety company, as though such company was a resident of Nodaway county, seemed to justify the plaintiff in joining the defendants Marshall and Evans as codefendants, under the second clause of section 1751. But such joinder is of no consequence here, since the action was dismissed as to Marshall and Evans, leaving the action properly brought against the remaining defendant.
The action being properly brought and the court having complete jurisdiction and judgment being rendered, it leaves defendant without any cause of complaint unless it be on the following grounds:
It appears that in entering the dismissal of the cause, the clerk did not enter a formal judgment of discharge that they "go hence without day," and upon this the surety company has raised a question as to the validity of the judgment subsequently rendered against it, claiming that a judgment should dispose of all the parties to the action. We do not see how such omission can affect the surety company. The dismissal was not caused by a hearing, nor by any adverse ruling of the court. It was a voluntary dismissal by plaintiff before trial, and the entry of the clerk...
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