Gates v. Tusten

• Decision Date: 30 April 1886
• Court: Missouri Supreme Court
• Parties: GATES et al. v. TUSTEN et al.¹

89 Mo. 13

GATES et al.

v.TUSTEN et al.¹

Supreme Court of Missouri.

April Term, 1886.

Error to circuit court, Jackson county

Amos H. Kagy, for plaintiffs in error.

Karnes & Ess, for defendants in error.

SHERWOOD, J.

Plaintiffs sued defendants Tusten & De Neven, in the special law and equity court of Jackson county. The suit was by attachment, the defendants being non-residents. Afterwards, publication having been made, and they having defaulted, judgment went against them in the Jackson circuit court to which the cause had been transferred, which judgment, as the record thereof recites, was ordered to be satisfied out of the property and effects attached in the suit. Two writs of attachment were issued in the cause,--one directed to the sheriff of Jackson county, which, and the return thereon, is not in the transcript, being stated by the clerk to have been lost; and the other, issued to the sheriff of St. Louis, is returned, showing service of garnishment on the London & Globe Insurance Company, and on the Phoenix Insurance Company. Smith & Keating were also served with the process of garnishment, and interrogatories filed as to them, and they answered, but as their answer is lost, as the clerk certifies, its contents cannot be ascertained. It seems that they resided in Kansas City. This counsel for Eastland admit, and indeed it may be presumed as the return on the writ of attachment issued to the sheriff of the city of St. Louis is in full, and shows no service on Smith & Keating, and the writ issued to the sheriff of Jackson county, and the return thereon, are lost, as aforesaid. The Phoenix Insurance Company, answering the interrogatories propounded them, alleged that they were indebted to Tusten & Co., a firm composed of Tusten & De Neven, in the sum of $3,200, on a policy of insurance, but that the insurance company had been notified of the transfer of the policy to Eastland in trust for certain creditors of Tusten & Co. And the insurance company thereupon brought and paid the money into court, and asked that Eastland and plaintiff be required to frame an issue to try their rights, etc. The circuit court made the appropriate order, and thereupon publication was made, and Eastland, a non-resident, appeared, and filed a plea to the jurisdiction of the court as follows: “Comes now G. W. Eastland, by his attorneys, and in pursuance of the order of the court heretofore made in this cause, and appearing for the purposes of this motion only, and protesting and objecting to the jurisdiction of the court herein, says:

' First, that said Phoenix Insurance Company of Hartford, Connecticut, garnishee in said cause, was not and could not be legally summoned as garnishee in reference to the fund and indebtedness set forth and described in its answer as such garnishee, for the reason that said indebtedness grew out of a contract of insurance executed and made payable in the state of Kansas, under and in pursuance of the laws thereof, and that said insurance company was, at the time of the execution of said contract, and the accruing of the liability thereon, a corporation organized and existing under the laws of the state of Connecticut, having no chief place of business or managing officers in the state of Missouri, or any other person upon whom the process of this court could be served in the state of Missouri; second, and for the further reason that the action of the plaintiff was improperly brought in Jackson county, Missouri, as the defendants had no property or credits in said county, nor could said defendants, or either of them, be found, or were they found therein; third, and for the further reason that the indebtedness described in the answer of said garnishee was not subject to attachment in the state of Missouri, the said defendants being at the time, and now are, residents of the state of Kansas, where said indebtedness is due and payable under the contract set forth in the answer of said garnishee, and said garnishee being a foreign corporation, and not subject to garnishment process herein. Wherefore he prays that said fund may be released and discharged from the operation of said attachment.”' There was a reply filed by plaintiffs to the plea of jurisdiction, and a trial of the issue thus raised resulting adversely to Eastland, and thereupon it was adjudged that as Eastland had failed to establish his claim to the fund paid into court by the Phoenix Insurance Company that the clerk of the court pay the judgment already rendered against the defendants. The foregoing facts are all gathered from the record proper, as no bill of exceptions accompanies this transcript.

The sole question, then, arising on this record, is, did the circuit court of Jackson county acquire any jurisdiction in the cause by reason of the issuance and return of its process? I am of opinion that it did, and for the following reasons: It is one of the fundamentals of the law that, where the record of a court of general jurisdiction shows that it assumed to exercise jurisdiction over person or subject-matter, in the absence or silence of the record as to any fact showing the acquisition of jurisdiction, or how it was acquired, then jurisdiction is to be presumed; for the rule is that “nothing shall be intended to be out of the jurisdiction of the superior court, but which specially appears to be so.” Huxley v. Harrold, 62 Mo. 516. In the case just cited, the principle I stated was applied. Proceedings by attachment were instituted in Buchanan county, but it did not appear that any property was levied on in that county, but a writ of attachment did issue to Andrew county, and real estate was levied on, and, under a judgment afterwards obtained in the circuit court of Buchanan county, the land thus attached was sold, and this gave rise to an action of ejectment, and it was ruled that as the Buchanan circuit court record was silent, as to whether a writ of attachment had been issued and levied on property in Buchanan county, that such fact would be presumed, and the judgment rendered in the attachment proceedings was not open to collateral attack on account of such silence in the record. Here the same principle should prevail, because the attachment writ, and the return thereon, in this instance being lost, as well as the answer of Smith & Keating, the presumption will be that they answered that they had property or effects of Tusten & Co. in...