In re State ex rel. Columbia National Bank of Kansas City v. Davis

• Citation: 284 S.W. 464,314 Mo. 373
• Decision Date: 21 May 1926
• Docket Number: 26139
• Parties: IN MATTER OF STATE OF MISSOURI ex rel. COLUMBIA NATIONAL BANK OF KANSAS CITY, Relator, v. ARCH B. DAVIS, Judge of Circuit Court of Livingston County, and ALBERT L. TERRY
• Court: United States State Supreme Court of Missouri

284 S.W. 464

314 Mo. 373

IN MATTER OF STATE OF MISSOURI ex rel. COLUMBIA NATIONAL BANK OF KANSAS CITY, Relator, v. ARCH B. DAVIS, Judge of Circuit Court of Livingston County, and ALBERT L. TERRY

No. 26139

Supreme Court of Missouri

May 21, 1926

Preliminary rule discharged.

Henry A. Bundschu and T. J. Wadden for relator.

The sole question for decision in this case is whether a corporation may be sued and served with process under Section 1177 (which is a venue statute) in a county where the cause of action did not accrue and where it has no office or agent for its usual and customary business, as provided in Sec 1180, R. S. 1919. Section 1177 (Sec. 1751, R. S. 1909) is a general statute providing for the place of instituting suits "except as otherwise provided by law." This exception clause was inserted in this section in 1855 when Section 1180 (Sec. 1754, R. S. 1909) was enacted. Section 1180 is an exclusive statute providing for service on corporations, foreign as well as domestic, and contains no provision for sending a summons into another county except as is implied, when the cause of action accrues in the county where the suit is brought. Section 1177 applies solely to persons. State ex rel. v. Jones, 270 Mo. 230; State ex rel. v. Gantt, 274 Mo. 490; Roberts v Ins. Co., 201 Mo.App. 239; Darby v. Weber Imp. Co., 208 S.W. 116; Winter v. Bank, 238 S.W. 833.

Nat G. Cruzen for respondents.

Where there are "several defendants" and such defendants reside in different counties, Section 1177, R. S. 1919, and not Section 1180 applies, and suit may be brought against such defendants in any county, in which any one of them reside, and this applies whether a corporation is one of such "several defendants," or not. Gray v. Coal Co., 175 Mo.App. 421; Stilwell v. Craig, 58 Mo. 24; 14a C. J. p. 493, sec. 2879; Harrison v. Timber Co., 14 Wyo. 246; Eagle Iron Co. v. Baugh, 147 Ala. 613; McClellan & Co. v. American Tie & Timber Co., 135 Ga. 370; Waycross Air Line Co. v. Ry. Co., 114 Ga. 727; Chorn v. Zollinger, 143 Mo.App. 191; Cotton Contr. Co. v. First Natl. Bank, 245 S.W. 118; American Surety Co. v. State, 245 S.W. 1033; State ex rel. Hentschel v. Cook, 201 S.W. 363; 40 Cyc. 98. A statute fixing the venue in actions against corporations does not apply where a corporation is sued jointly with another. 14a C. J. 793, sec. 2879; Eagle Iron Co. v. Bough, 147 Ala. 613; Harrison v. Timber Co., 14 Wyo. 246; Gray v. Coal Co., 175 Mo.App. 421; Stilwell v. Craig, 58 Mo. 24. In the absence of express statutory provisions as to venue in civil actions against corporations, the venue in such case is determined by the statutory provisions relating to civil actions generally, and prior to the enactment of our statute (present Sec. 1180) relative to venue in suits against corporations, corporations were sued in all respects as were persons. State ex rel. v. Gantt, 274 Mo. 504; 14a C. J. 790, sec. 2875. Sections 1177 and 1180, Revised Statutes 1919, should be construed together, being in pari materia and on same subject-matter. Baker v. Koeln, 270 Mo. 174; State ex rel. Gray v. Schuster, 227 S.W. 60; McClanahan v. DeWitt, 160 Mo.App. 304; Gantt v. Brown, 238 Mo. 560; Hegberg v. Ry. Co., 164 Mo.App. 514; Rutter v. Carothers, 223 Mo. 631. A statute that creates or gives undue inequalities or advantage with reference to the venue of action, to corporations, denied to individuals, is unconstitutional, as violating the State and Federal constitutions. McClung v. Pulitzer Pub. Co., 279 Mo. 370, 214 S.W. 193; Houston v. Pulitzer Pub. Co., 249 Mo. 332; In re Flukes, 157 Mo. 125; 12 C. J. 1142, secs. 876, 877.

Blair, C. J. All concur, except Otto, J., not sitting.

OPINION

BLAIR

An original proceeding in prohibition. Our provisional rule was ordered issued and service thereof was waived. The record does not disclose that our said rule issued, but respondents filed answer and return, and relator filed motion for judgment on the pleadings. Later an amended return was filed and the case is before us upon such record.

Respondent Davis was Judge of the Circuit Court of Livingston County, and while so acting respondent Terry filed suit in that court against Ivo W. Lively and Thornton Cooke for actual and punitive damages alleged to have been sustained by him on account of false representations made by them in the sale of stock in the Bank of Jamesport. Terry resided in Daviess County. Defendant Lively resided in Livingston County, where he was served with summons, and defendant Cooke in Jackson County, where he was served with summons by the sheriff of that county. Later an amended petition was filed in said suit, wherein relator Columbia National Bank of Kansas City, a banking corporation, was made a party defendant. Summons for said corporation defendant was thereafter issued and served in Jackson County. Appearing in said Livingston Circuit Court for the purpose of its motion only, said relator moved the court to quash the service of summons upon it and to dismiss on the ground that the suit was not brought in the county where the cause of action accrued or where relator had or usually kept an office or agent for the transaction of its usual or customary business, and that the Circuit Court of Livingston County for that reason had no jurisdiction to issue summons for relator. This motion was overruled. Relator thereafter applied for and obtained our provisional rule in prohibition as above stated.

The question for decision is: Can an action against a corporation and another defendant be maintained in the county where such other defendant resides, although the cause of action did not accrue there and the corporation does not have an office or agent in such county? Respondents so contend, notwithstanding they concede that, under Section 1180, Revised Statutes 1919, an action could not be maintained against a corporation as sole defendant in Livingston County under such circumstances. Respondents contend that the second subdivision of Section 1177, Revised Statutes 1919, governs the venue of civil actions against corporations which are not sole defendants.

Section 1177 reads as follows: "Suits instituted by summons shall, except as otherwise provided by law, be brought: First, when the defendant is a resident of the State, either in the county within which the defendant resides, or in the county within which the plaintiff resides and the defendant may be found; second, when there are several defendants, and they reside in different counties, the suit may be brought in any such county; third, when there are several defendants, some residents and others non-residents of the State, suit may be brought in any county in this State in which any defendant resides; fourth, when all the defendants are non-residents of the State, suit may be brought in any county in this State; fifth, any action, local or transitory, in which any county shall be plaintiff, may be commenced and prosecuted to final judgment in the county in which the defendant or defendants reside, or in the county suing and where the defendants, or one of them, may be found." (Italics ours.)

Section 1180 reads as follows: "Suits against corporations shall be commenced either in the county where the cause of action accrued, or in case the corporation defendant is a railroad company owning, controlling or operating a railroad running into or through two or more counties in this State, then in either of such counties, or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business."

In view we take as to the proper construction to be given Sections 1177 and 1180, it is unnecessary to consider where the cause of action accrued. We will assume for the purposes of this opinion that such cause of action did not accrue in Livingston County. It is not contended that relator had an office or agent in said county.

Relator relies upon two decisions of this court en banc, to-wit: State ex rel. St. Joseph Lead Co. v. Jones, 270 Mo. 230, and State ex rel. Standard Fire Insurance Co. v. Gantt, 274 Mo. 490. In the Jones case suit for personal injuries was instituted in the Circuit Court of the City of St. Louis against the corporation as sole defendant. The corporation had no office or agent in said city and the cause of action accrued in St. Francois County where the corporation had its office and transacted its usual business. Respondent claimed that Section 1754 (Sec. 1180, R. S. 1919) applied to domestic corporations and not to foreign corporations and that venue was in the Circuit Court of the City of St. Louis under the fourth subdivision of Section 1751, now Section 1177. This court held that Section 1754 applied to all corporations and, having so held, decided that the suit could only be maintained in St. Francois County.

The language there used must be understood in connection with the fact in that case that the corporation defendant was the sole defendant. Such language was broad enough to cover all suits against a corporation, whether such corporation is the sole defendant or joined as such with other defendants. But the court was not there considering the situation where a corporation is joined with another defendant and the suit is brought in the county where such other defendant resides. Venue in the city of St. Louis was contended for under subdivision four of Section 1751 (1177), on the ground that a foreign corporation is a non-resident. The court deemed it unnecessary to decide the question of non-residence. It held that Section 1754 (1180) governed the venue, because the word "corporations" includes both domestic and foreign corporations. If it had been held that said corporation was a non-resident of...