Groce v. Skelton

• Decision Date: 03 May 1921
• Citation: 230 S.W. 329,206 Mo.App. 471
• Parties: JOHN GROCE, Respondent, v. HENRY SKELTON, Appellant
• Court: Missouri Court of Appeals

230 S.W. 329

206 Mo.App. 471

JOHN GROCE, Respondent, v. HENRY SKELTON, Appellant

Court of Appeals of Missouri, Springfield

May 3, 1921

Appeal From Circuit Court Of Howell County.--Hon. E. P. Dorris Judge.

REVERSED.

Judgment reversed.

Wright & Ruffin and Green & Green for appellant.

(1) It is competent for the defendant to unite in the same answer matter in abatement and matter in bar. Little v Harrington, 71 Mo. 390; Byler v. Jones, 79 Mo 264; Christian v. Williams, 111 Mo. 443; Meyer v. Insurance Co., 184 Mo. 487; Little Rock Trust Co. v. Ry. Co., 195 Mo. 669, 683. (2) An agent must be the cause and to require a jury to find what "indirectly" includes would give them a rather large field for operation. Russell v. Poor, 133 Mo.App. 727; Real Est. Co. v. R. E. Co., 144 Mo.App. 625; Ramsey v. West, 31 Mo.App. 676; Dillard v. Field, 168 Mo.App. 212.

W. N. Evans for respondent.

(1) This plea in abatement was submitted to the court and tried separate from the merits of the cause at the instance of the defendant and it is the well-settled doctrine of this State that the finding of the trial judge on that issue is conclusive, it being evident that the court found that the defendant was not brought into its jurisdiction by fraud. Christian v. Williams, 111 Mo. 429, 444; Morris v. Dowell, 205 S.W. 232, and cases cited. (2) Even conceding that defendant when served with process in Howell County was attending a civil procedure against him he would not be protected on the theory that he was there at the instance of the plaintiff. See Bledsoe v. Letson, 215 S.W. 514, and cases cited.

FARRINGTON, J. Cox, P. J., and Bradley, J., concur.

OPINION

FARRINGTON, J.

The plaintiff recovered a judgment against defendant for commissions alleged to be due on account of services rendered as a real estate agent in selling the defendant's land.

As we think the trial court erred in failing to sustain a plea in abatement filed by defendant, which plea strikes at the jurisdiction of the court in this cause, it will be unnecessary to discuss any other phase of the record before us.

It appears, without contradiction, that the plaintiff sometime previous to this suit had filed a suit in Howell County, Missouri against the defendant on this same cause of action; that the summons was placed in the hands of the sheriff and there was a failure to obtain service, which case was dismissed, and the plaintiff then filed suit in Greene County, which was the home of defendant, on the same cause of action. While this suit was pending, the plaintiff gave notice to the defendant to take depositions in the cause then pending in the Greene County Circuit Court, which depositions were to be taken at the office of the plaintiff's attorney in the town of West Plains, Howell County, Missouri, the time set for taking said depositions was May 29, 1919. It appears that the defendant and his attorney went to West Plains, the defendant arriving there on May 28th, the day before the time for taking the depositions as set in the notice, and his attorney appeared there on the morning of the 29th, which was the day set for the taking of the same. It is further admitted by plaintiff's attorney that on May 28th, he conceived the idea of dismissing the suit then pending in Greene County, in which the depositions were to be taken, and to institute a new suit on the same cause of action in Howell County where he could then get service upon the defendant who had gone there on the taking of the depositions in the Greene County action, and this summons was served in the suit in which the judgment was rendered which is the subject of this appeal. Although the new suit was filed in Howell County on May 28th, and the summons placed in the sheriff's hands, service was not had until about noon the 29th. The attorney for plaintiff admitted that on the morning of the 29th, after he had filed this suit the day before, he wired to the clerk of the Greene County Circuit Court to dismiss that action and then notified the defendant and his attorney that no depositions would be taken. It was further testified to by the attorney for defendant that on the morning of the 29th, the attorney for plaintiff had informed him that he had tried several times to get the defendant into Howell County so that service might be had on him but that he had failed to do so. The attorney for plaintiff testified that what he meant by that was that he had failed to get service in the first suit he had filed in Howell County. Plaintiff's attorney testified that at the time he gave the notice to take depositions in the suit pending in Greene County, he nor his client had any idea of getting defendant down to West Plains on that matter and then filing a new suit in that county; and it appears from the evidence that the attorney for plaintiff, Mr. J. L. Bess, strenuously testified that he had no fraudulent motive in doing what was done.

With these facts before us we feel that no court should permit a service of this kind to stand as legal process. Regardless of what the intention of plaintiff's attorney was when he gave notice to take the depositions in West Plains on May 29th, before that deposition was taken and after the defendant went to West Plains to attend to his law suit, the...