Hall v. Wilder Mfg. Co.

• Decision Date: 16 February 1927
• Docket Number: No. 25838.,25838.
• Citation: 293 S.W. 760
• Parties: HALL v. WILDER MFG. CO.
• Court: Missouri Supreme Court

293 S.W. 760

HALL v. WILDER MFG. CO.

No. 25838.

Supreme Court of Missouri, Division No. 1.

February 16, 1927.

Motion for Rehearing Overruled April 11, 1927.

Appeal from St. Louis Circuit Court: Wilson A. Taylor, Judge.

Suit commenced by Bogert & Hopper, Incorporated, against the Wilder Manufacturing Company, in which Thomas P. Hall was substituted as party plaintiff. From a judgment for plaintiff, defendant appeaLs. Reversed and remanded.

Anderson, Gilbert & Wolfort, of St. Louis, for appellant.

Grant & Grant, of St. Louis, for respondent.

LINDSAY, C.

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 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 clay 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 $5016.10.

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 Fourteenth 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 of said Oliver Bobe, which, after statement that the defendant is a Missouri corporation having its office and factory in the city of St. Louis, and having no other office or agency, and that the summons was delivered to him in the city of New York on February 7, 1921, is as follows:

"That deponent was in New York at the time the said summons and complaint were delivered to him for the purpose of attending the toy fair, which is now being held in said city at the Imperial Hotel; that the Wilder Manufacturing Company participates once a year in said fair by placing on exhibition at the rooms in which said fair is held samples of its merchandise in common with all the principal toy manufacturers in the United States. That said fair is attended by many jobbers and other merchants from all over the United States and that all of the exhibitors in said fair, including the Wilder Manufacturing Company, take such orders as may be secured from the persons attending the said fair. That none of the merchandise of the Wilder Manufacturing Company on exhibition at the said fair is for sale, and that none of it is sold. That every order taken at the said fair by deponent is taken to be forwarded to the office of the Wilder Manufacturing Company, at St. Louis, and filed at St. Louis, and the credit of the purchaser there approved, and no order taken at the said fair is final or binding until same has been accepted and the credit of the purchaser approved at the company's office in St. Louis.

"Deponent further states that his activity within the state of New York on behalf of the Wilder Manufacturing Company is completely described in the foregoing portion of this affidavit.

"He further states that within the six years during which he has been connected with the Wider Manufacturing Company that company has had no office or agent within the state of N(w York, nor has it transacted any business within the state of New York except those activities above described at the annual toy fair.

"Deponent further states that the merchandise which is referred to in the complaint, which we s delivered to him as aforesaid, was ordered by mail by the Wilder Manufacturing Company; that the letter ordering the same was written in St, Louis and posted at St. Louis; and that the acceptance which is referred to in the said complaint is payable at the Merchants' Laclede National Bank in St. Louis."

The plaintiff, Bogert & Hopper, Inc., in support of the service, filed the affidavit of Tiomas P. Hall, its attorney, who deposed as follows:

"That the defendant company, as deponent is informed and believes, has hired room 239 for their exclusive use, at the Hotel Imperial, New York City.

"That deponent called at said room and saw the sign above the door, `Wilder Manufacturing Company,' and also saw one George A. Bauer, an employee of said defendant company, in charge of said room and the merchandise exhibited for sale therein.

"Deponent has also seen advertisements of ti e defendant company in trade papers, advertising their complete line of toy merchandise at, the Hotel Imperial, and deponent is informed that said fair opened on the 1st day of February, 1921, and continues for a period of 6 weeks, and deponent has received from said Bauer at said Hotel Imperial this month illustrated catalogue of defendant's merchandise, and saw a number of other catalogues there, which were apparently for distribution for the purpose of obtaining o rders."

The defendant in further support of its motion filed the supplemental affidavit of said Lobe, which, after statement that he had executed the former affidavit, further ran as follows:

"That the Wilder Manufacturing Company temporarily rented room 239 at the Imperial Hotel only during the period of the toy fair, for the sole purpose of exhibiting its merchandise ss samples, and not for the purpose of sale.

"That the Wilder Manufacturing Company had E small paper sign, reading `Wilder Manufacturing Company,' secured temporarily above the door of its room in the same manner as did other exhibitors at the toy fair."

The motion, being submitted upon these affidavits, was sustained by the trial court and Bogert & Hopper, Inc., took an appeal therefrom to the Appellate Division of the 3upreme Court where the order sustaining defendant's motion was reversed and set aside. Defendant took no appeal therefrom end did not further appear, and thereafter judgment was rendered in favor of Bogert & Hopper, Inc., and against defendant.

Coming first for consideration in this ease is the effect of the fact of express adjudication by the New York court that jurisdiction of the defendant had been obtained in the original suit. The general doctrine, that, in a suit brought in one state upon a judgment rendered by a court of another state, the jurisdiction of the court rendering such judgment may be challenged, is not disputed by counsel for plaintiff. Such is the settled doctrine. 34 C. J. 1113, 1144; Marx v. Fore, 51 Mo. 69, 11 Am. Rep. 432; Stuart v. Dickinson, 290 Mo. 516, 235 S. W. 446; Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; Riverside & Dan River Cotton Mills v. Menefee, 237 U. S. 189, 35 S. Ct. 579, 59 L. Ed. 910. This doctrine is the result of the harmonious coexistence and relation, established by the decisions, between the provisions of section 1 of article 4, of the Constitution of the United States and section 1 of article 14 of the amendments to the Constitution of the United States. As it is stated, in substance, in the opinion in the Riverside-Mills Case, that...