Hall v. Wilder Manufacturing Company

• Decision Date: 16 February 1927
• Docket Number: 25838
• Citation: 293 S.W. 760,316 Mo. 812
• Parties: Thomas P. Hall v. Wilder Manufacturing Company, Appellant
• Court: Missouri Supreme Court

293 S.W. 760

316 Mo. 812

Thomas P. Hall v. Wilder Manufacturing Company, Appellant

No. 25838

Supreme Court of Missouri

February 16, 1927

Motion for Rehearing Overruled April 11, 1927.

Appeal from Circuit Court of City of St. Louis; Hon. William A Wilson, Judge.

Reversed and remanded.

Anderson Gilbert & Wolfort for appellant.

(1) The judgment violates the Fourteenth Amendment of the Constitution of the United States. The Supreme Court of New York had no jurisdiction over the Wilder Manufacturing Company; said company was not doing business in New York. Harkness v. Hyde, 98 U.S. 476; Old Wayne Life Assn v. McDonough, 204 U.S. 8; Riverside Mills v. Menefee, 237 U.S. 189; Goldey v. Morning News, 156 U.S. 518; Conley v. Alkali Works, 190 U.S. 406; Kendall v. Am. Automatic Loom, 198 U.S. 477; Com. Mutual Life v. Spratley, 172 U.S. 602; Painter v. Railroad, 127 Mo.App. 253; In re Kimball, 155 N.Y. 862. (2) Activities of the Wilder Manufacturing Company at the Toy Fair in New York did not constitute doing business in New York. Cheney v. Massachusetts, 246 U.S. 153; Green v. Burlington, 205 U.S. 530; Eastman v. Vehicle Co., 195 S.W. 336; Putney Shoe Co. v. Edwards, 60 Pa. S.Ct. 338; Brookford Mills v. Baldwin, 154 A.D. 553; Gilmer Bros. Co. v. Singer, 149 N.Y.S. 195; Mergenthaler Co. v. Hays, 182 Mo.App. 113; Lobe v. Star & Herald Co., 187 A.D. 175; Cody v. Motor Co., 196 F. 254. (3) Judgment of a foreign state can be collaterally attacked for want of jurisdiction. If there is no jurisdiction it is void. Pennoyer v. Neff, 95 U.S. 714; Hennings v. Ins. Co., 28 F. 444; In re Kimball, 155 N.Y. 62; Central Exchange v. Hammond, 125 F. 463; Old Wayne Life Assn. v. McDonough, 204 U.S. 8; Riverside Mills v. Menefee, 237 U.S. 189.

(4) Where the facts on which jurisdiction depends are undisputed, jurisdiction is a matter of law and may be collaterally attacked. State ex rel. v. Falkenhainer, 274 S.W. 758; State ex rel. v. Homer, 249 Mo. 65; State ex rel. v. Holtcamp, 266 Mo. 373; State ex rel. v. Caulfield, 245 Mo. 679; State ex rel. v. Shields, 237 Mo. 1047; State ex rel. v. Mills, 231 Mo. 499. (5) A motion to strike out admits the truth of the allegations sought to be stricken. Bogert & Hopper was admitted to be the real party in interest and the assignment was admitted to be fraudulent. No assignee acquires a greater right than his assign had. Sec. 2161, R. S. 1919. By filing the suit by Bogert & Hopper, the Wilder Manufacturing Company had the right to file a counterclaim. Secs. 1232, 1233, R. S. 1919. Hence, under Section 2161 Bogert & Hopper could not by assignment deprive defendant of that right.

Grant & Grant for respondent.

(1) The question of sufficiency of service was a mixed question of law and fact. Where a matter has once been litigated in a court of competent jurisdiction the losing party will not be permitted in another court to litigate the same matter with the same party, even though error might have been committed by the court in the first instance. So also in a suit on a judgment the losing party will not be permitted to attack collaterally the correctness of the decision in the original case. That can be attacked only directly by appeal or by writ of error in that original proceeding. Tootle v. Buckingham, 190 Mo. 195; Harding v. Harding, 198 U.S. 317; LaRue v. Kempf, 186 Mo.App. 70; Sipe v. Capewell, 59 F. 970. The question of jurisdiction cannot even be tried twice in the same proceeding. Baisley v. Baisley, 113 Mo. 550; Newcomb v. Railroad, 182 Mo. 687. Where the defendant does not appear and contest the validity of the service, and judgment is rendered against him, he may in any other proceeding attack the validity of that service, as was done properly in Pennoyer v. Neff, 95 U.S. 714, cited by appellant, whether that service was by publication only or by other service in the nature of personal service. Where, however, he appears and contests the question of jurisdiction, that question, once decided, becomes final if unappealed from. Baisley v. Baisley, supra, 550, citing: Hagerman v. Sutton, 91 Mo. 519. And this is true even though the judgment on the issue joined as to jurisdiction was erroneous. (2) The substitution of Hall for Bogert & Hopper, under Sec. 1354, R. S. 1919, was mandatory. Childs v. Thompson, 81 Mo. 337; Spurlock v. Sproule, 72 Mo. 503; Coe v. Ritter, 86 Mo. 287; Springfield to use v. Weaver, 137 Mo. 650. So complete is this substitution that the sureties on a cost bond given by the original plaintiff are discharged when the substitution is made and a judgment for costs against such sureties is an absolute nullity. Ex parte James and Ray, 59 Mo. 280. As Hall, therefore, was a new plaintiff and as the defendant had no counterclaim against Hall, therefore the court was required to strike out defendant's counterclaim on motion, because under the statute a counterclaim must be one in favor of the defendant and against the plaintiff. Sec. 1233, R. S. 1919. The cause of action pleaded in defendant's answer is an unliquidated one for damages for breach of contract. Therefore, it cannot be set off against plaintiff's cause of action, even though it might have been set off if the original plaintiff had continued to be plaintiff, for Sec. 1293, R. S. 1919 does not provide for setting off an unliquidated claim against an assignee. Brokerage Co. v. Campbell, 164 Mo.App. 8; Est. Co. v. Arms Co., 110 Mo.App. 406; Volker v. Stone, 181 Mo.App. 311; Bauerdorf v. W. P. Co., 203 S.W. 220. (3) As the Appellate Division of the New York Supreme Court rendered unanimous decision, all six Judges concurring that the service on Bobe was valid under the New York law, and as defendant was satisfied at that time to abide by that decision because it took no appeal to a higher court as it might have done, that decision in this court must be held to express the law of New York on that subject.

Lindsay, C. Seddon. C., concurs.

OPINION

LINDSAY

This is a suit brought upon a judgment in personam, in the sum of $ 2,371.10, in favor of Bogert & Hopper, Inc., as plaintiff, against Wilder Manufacturing Company, as defendant, rendered by the Supreme Court of New York County in the State of New York, on September 6, 1921. The errors assigned by defendant fall under two general heads. The first is, that the trial court erred in sustaining the validity of the judgment rendered by the New York Court, it being the contention that that court did not acquire jurisdiction over defendant, and the second is, that error was committed in striking out the counterclaim set up by defendant.

On September 22, 1921, Bogert & Hopper, Inc., brought suit upon said judgment in the Circuit Court of the City of St. Louis, and service was had upon defendant. Thereafter, Thomas P. Hall asked leave to be substituted as party plaintiff in said cause and such leave was granted, and on February 14, 1922, he, as plaintiff, filed an amended petition in which, after alleging that Bogert & Hopper, Inc., was a New York corporation, he set out the fact of the institution of the action by Bogert & Hopper, Inc., against the defendant in the Supreme Court of New York County, and alleged that said court was a court of general jurisdiction, having jurisdiction of the defendant and of the subject of the action, and that defendant had been duly served with process in said action, and had appeared therein by its duly authorized attorney and attacked the service of process upon it as invalid; that said question was duly litigated in said cause, and that said service had been finally adjudicated to be valid and binding; that judgment was duly rendered in said cause, and that a transcript of such judgment and proceedings, duly authenticated, was filed herein. Said amended petition also alleged the assignment of the judgment to plaintiff, Thomas P. Hall, on the 22d day of December, 1921, and the substitution of him as plaintiff. Afterward, defendant filed its answer, which consisted of a general denial, and also of the further defense that the assignment of the judgment to plaintiff Hall had been made for the purpose of preventing the defendant from asserting its counterclaim, and that Bogert & Hopper, Inc., were the real parties in interest, and the defendant set up its counterclaim, based upon an alleged breach by Bogert & Hopper, Inc., of a contract for the sale by them of certain merchandise to defendant, whereby it was alleged the defendant was damaged in the sum of $ 5,016.10.

The trial court sustained plaintiff's motion to strike out defendant's set-off or counterclaim. A jury was waived, and the cause submitted to the court, which rendered judgment in favor of the plaintiff. Upon the trial, plaintiff offered in evidence the transcript of the proceedings of the New York court. Defendant made the objection that the record of said proceedings showed that the New York court did not have and could not acquire jurisdiction over the defendant; that the defendant was a Missouri corporation, not doing business in the State of New York, and the service upon it in that State was void, and that to hold otherwise would violate the due-process clause of the 14th Amendment of the Federal Constitution.

The transcript, admitted in evidence, shows that the original action in the New York court was based upon a trade acceptance of defendant, given for merchandise sold by Bogert & Hopper, Inc., to the defendant. It further showed that the service in that suit was had upon one Oliver Bobe, secretary and treasurer of the defendant corporation, at the Imperial Hotel in the city of New York; that thereafter the defendant entered its appearance specially, and moved the court to set aside the service of summons and complaint in the action. In support of its motion, defendant filed the affidavit...