Ederheimer v. Carson Dry Goods Co.

• Decision Date: 16 December 1912
• Citation: 152 S.W. 142,105 Ark. 488
• Parties: EDERHEIMER v. CARSON DRY GOODS COMPANY
• Court: Arkansas Supreme Court

152 S.W. 142

105 Ark. 488

EDERHEIMER v. CARSON DRY GOODS COMPANY

Supreme Court of Arkansas

December 16, 1912

Appeal from Union Circuit Court; George W. Hays, Judge; reversed.

STATEMENT BY THE COURT.

Appellant a St. Louis firm of merchants, sued the appellee, an Arkansas corporation, on a judgment obtained by appellants against appellee in the circuit court of the city of St. Louis Missouri. The defense was that the circuit court where the judgment was obtained was without jurisdiction. The appellee alleged "that no service of summons or process in said suit in the circuit court of the city of St. Louis, State of Missouri, has ever been had on this defendant; and that Ike Felsenthal, at the time he was served with summons in the suit on which the said plaintiffs attempted to recover a judgment, the same that is sued on herein, was in the city of St. Louis, not on business for this defendant."

The appellant filed a replication, in which it denied "that Ike Felsenthal at the time he was served with summons in the suit in which the plaintiffs recovered a judgment in the city of St. Louis, the same that is sued on herein, was not on business for defendant at the time in the city of St Louis." And set up "that defendant should not now be permitted to deny the jurisdiction of the circuit court of the city of St. Louis, Missouri, of the person of the defendant, because the record of the suit in Missouri shows that citation to answer the plaintiffs' demand having been duly served on an agent of the defendant, pursuant to the laws of Missouri, and the defendant, having appeared as shown by the record, did then and there plead that it had not been legally cited, and that the person upon whom process was served was not such an agent of defendant as that such service of process would bind the defendant to bring it into court, which said matters and things were the same as are now pleaded here; and that thereupon the court in Missouri adjudged that the defendant had been legally cited, and that the person upon whom the process was served was such an agent as that such service of process would bind said defendant to bring it into court; and that the defendant is bound and concluded by said judgment to plead here anew the matters and things passed upon and determined there."

The amended return to the summons on which the judgment in Missouri was obtained is as follows: "Served this writ in the city of St. Louis, Missouri, this 25th day of February, 1909, on the within named defendant, the Carson Dry Goods Company, a corporation organized under the laws of the State of Arkansas, by delivering a copy of said writ and petition, as furnished by the clerk, to Isaac Felsenthal director, stockholder, agent and employee of said corporation, said corporation having no office or place of business in this State, the said Isaac Felsenthal being in the city of St. Louis on said date representing the said Carson Dry Goods Company in the purchase of goods for said company." (Signed by the sheriff.)

The appellee filed in the circuit court of St. Louis the following motion to quash: "Comes now the defendant in the above entitled cause, appearing for the purpose of this motion and for no other purpose, and especially limiting its appearance for the purpose of this motion, and moves the court to quash the sheriff's amended return of service of summons in this cause, and for ground for this motion this defendant says that it appears from the amended return made by the sheriff herein that the defendant had no office in the State of Missouri at the time of service; that the defendant is a nonresident corporation, organized under the laws of the State of Arkansas, and it does not appear from said return that defendant was doing business in the State of Missouri, but it does appear from said return that the person upon whom the sheriff served the copy of the writ and petition in this case was in the city of St. Louis buying goods for the defendant, but it does not appear from said return that said person upon whom the sheriff served the copy of the writ and petition was the proper agent of the defendant upon whom to make service." (Signed by the attorneys for the defendant).

The circuit court of Missouri overruled the motion to quash, and entered judgment in favor of the appellants by default "in the sum of $904.35, the aggregate sum found to be due, together with the costs herein expended," etc. This is the judgment upon which the present suit was brought.

On the trial the court permitted the appellee, over the objection of appellants, to show that it was a nonresident of Missouri; that it was not doing business or authorized to do business in that State; that at the time of the service of the summons on Ike Felsenthal he was not transacting business for the appellee, and that he was such an agent of the appellee as that service of summons on him in St. Louis would bind appellee. The court below found that the Missouri court was without jurisdiction over the person of the defendant, and that its judgment was void, and therefore open to collateral attack. It dismissed the complaint of appellants and rendered judgment in favor of the appellee for costs. The appellants duly prosecute this appeal.

Judgment reversed, and cause remanded.

Patterson & Green, for appellants.

1. The judgment of a superior court of record, unless appealed from is final and binding; and all questions of jurisdiction and liability and service are res judicatae and can not be attacked collaterally. Especially is this true where the court of record finally passes on the question of its own jurisdiction. Black on Judg., §§ 900-1; 23 Cyc. 1578, note 53, 1580, note 57; 11 How. 165, 13 L.Ed. 648; 11 How. 437; 9 Wall 812; 17 Wall. 521; 18 Id. 521; 18 Id. 457; 22 U.S. (L. Ed.) 70; 91 U.S. 160; 95 Id. 714; 195 U.S. 257; 11 Ark. 157; 13 Id. 33; 10 F. 696; 112 Id. 453; 70 Id. 808; 160 Id. 418; 12 L. R. A. (N. S.) 941; 103 S.W. 766; 91 Ala. 245; 9 So. 265; 87 Ala. 618; 6 So. 44; 91 Ga. 62.

2. If conclusive in the State where rendered, the judgment is conclusive everywhere. Story on Const., § 1313; 5 Wall. 290; 11 Ark. 162; Black on Judg., § 901; 12 Ark. 758; 19 Id. 422; 23 Cyc. 1556; 81 S.W. 1073; 124 F. 259; 21 Ia. 260; 7 Am. Rep. 129.

Gaughan & Sifford, for appellee.

1. In construing the "full faith and credit" clause, it is conceded that the jurisdiction of the court of a sister State rendering judgment, etc., is open to inquiry in the same court, notwithstanding the recitals in the judgment. 11 Ark. 157.

2. The appearance of defendant was special, to move to quash the return on the summons, and there is no res judicata nor estoppel in this case. 2 Am. St. 452. The motion to quash raised no issue as to proper service.

3. Before a court in Missouri could acquire jurisdiction, defendant must have been doing business in the State. 27 U.S. (L. Ed.) 123; 50 L. R. A. 577, and notes; 19 Cyc. 1328; 32 F. 802; 106 U.S. 359; 22 F. 635; 29 F. 37; 127 Id. 1008.

4. As to what constitutes "doing business in the State," see 90 Ark. 73; 29 F. 37; 106 U.S. 359; 32 F. 802.

OPINION

WOOD, J., (after stating the facts).

The record shows that the circuit court of St. Louis is a court of general jurisdiction, and had jurisdiction of the subject-matter, and the only question presented for our decision is whether or not the finding and judgment of the circuit court of Missouri, holding that it had obtained jurisdiction by a proper service upon appellee, is res judicata.

The appearance of the appellee in the Missouri circuit court for the purpose of quashing the...