Hannibal & St. Joseph R.R. Co. v. Mahoney

• Decision Date: 31 March 1868
• Parties: HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant, v. LORENZO D. MAHONEY, Respondent.
• Court: Missouri Supreme Court

42 Mo. 467

HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant,

v.LORENZO D. MAHONEY, Respondent.

Supreme Court of Missouri.

March Term, 1868.

Appeal from Sixth District Court.

Appellant commenced suit in the Circuit Court of Marion county to recover treble damages for certain alleged trespasses in cutting and carrying away timber from certain land situated in Lewis county, Mo. Respondent filed an answer denying that he wrongfully entered upon said land; denying the appellant's ownership thereof; and denying the cutting down of said timber. He then pleaded, in abatement of appellant's suit, the fact that the real estate described in appellant's petition was situated in the county of Lewis. Appellant demurred to that part of the answer pleaded in abatement, which demurrer the court overruled. Appellant then filed a motion to strike out the part of said answer described in said motion, which appears to have been also overruled. On the trial of the issue joined, the appellant offered evidence tending to prove the allegations in his petition. Defendant objected to the introduction of any evidence in support of the allegations in the petition, for the reason that it was admitted by the pleadings that the land on which the trespass was alleged to have been committed lay in the county of Lewis, and that the suit involved the title to said land, and hence that the court had no jurisdiction, which objection the court sustained, and refused to allow evidence to be adduced. Defendant then moved the court to dismiss the cause on the ground that it had no jurisdiction over it, as was shown by the pleadings. The court sustained defendant's motion, and thereupon dismissed the cause.

Appellant took an appeal to the Sixth District Court, which affirmed the judgment of the Circuit Court of Marion county. The appellant then appealed to this court.

James Carr, for appellant.

I. This action is one contemplated by the first section of chapter 163, p. 653, of the General Statutes of 1865, which confers jurisdiction upon the Circuit Court of Marion county, and not one contemplated by the third section of that chapter. This is strictly and purely an action in personam. It is for a certain sum of money, eo nomine et numero. It does not ask for any relief affecting the title to the realty. The first and third sections preserve the distinction between actions in personam and actions in rem. In the class of actions provided for in the first section, there must be, ex necessitate rei, a personal service of the summons. It is the residence of the one or the other within the county in which the suit is brought, and the service of the summons, whereby the court acquires the jurisdiction.

In the class of actions contemplated by the third section, the court may acquire jurisdiction by an order of publication, except in the case of an action in ejectment. It is true the law requires the defendant to be summoned, if he reside in the State. But the service of the summons upon him in any of the modes pointed out by the statute is not a sine qua non to the courts acquiring jurisdiction, as it is in the class of actions in personam provided for in the first section. The two sections evidently are based upon the palpable distinction between actions in personam and actions in rem. In this case the action is purely an action in personam. Still, the title is called in question from the nature of the defense. But while the title, from the nature of the defense set up, is called in question, it is not the primary object of the suit; and hence it cannot be said that it is a suit whereby the title is affected, within the purview of the third section. The suit involves the title in a collateral way. The primary object of the suit is not to affect the title. What is meant by the words of the third section, “whereby title may be affected?” It is evidently in those cases where the direct effect of the judgment of the court is to change the legal status of the title, as in the case of a judgment of foreclosure of a mortgage; of partition; for specific performance; to enforce a vendor's lien; to enforce a mechanic's lien; or of a suit to require a party claiming title to litigate or disclaim title, under sections 53-4 of chap. 166, pp. 662-3, of Gen. Stat. 1865; or a quia timet under the old equity practice; to remove a cloud upon the title; an information by the prosecuting attorney to declare land escheated to the State. In all these cases the suit would be such as to affect the title to the land; and under our system of recording it is eminently proper that the records of it should be in the county where the land is situated. (Ulrici v. Papin, 11 Mo. 48.)

This is a simple action for trespass to the realty. It is a personal action. How is the plaintiff to know, before the defendant files his answer, that the defendant will deny the plaintiff's title or call it in question in any way until after the answer is filed? The defendant may admit the title alleged and the trespass alleged in the plaintiff's petition; he may simply controvert the quantum of damages; and that not being a traversable allegation, he can controvert as well on an inquiry of damages as with an answer filed. Suppose, then, the plaintiff should institute the...