Kahn v. Mercantile Town Mut. Ins. Co.

• Decision Date: 31 May 1910
• Citation: 228 Mo. 585,128 S.W. 995
• Parties: KAHN v. MERCANTILE TOWN MUT. INS. CO.
• Court: Missouri Supreme Court

128 S.W. 995

228 Mo. 585

KAHN v. MERCANTILE TOWN MUT. INS. CO.

Supreme Court of Missouri, Division No. 1.

May 31, 1910.

1. COURTS (§ 483)—TRANSFER OF CAUSES— WAIVER.

Though a constitutional or federal question was involved, defendant waived the right to have the case transferred to the Supreme Court, where, after the overruling of its motion to quash the return of service of the writ, it failed to answer, and suffered judgment by default at a succeeding term.

2. PROCESS (§ 164)—AMENDMENTS—RETURN.

Amendments may be made to the return of a writ to correspond with the facts of the case, and, if the amendment be made even at a subsequent term, the return will relate back to the proper return day.

3. PROCESS (§ 164)—SERVICE—RETURN — AMENDMENT—NOTICE TO DEFENDANT.

Defendant is not entitled to notice of the making of an amended return of service of a writ and petition.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Leon Kahn against the Mercantile Town Mutual Insurance Company. Judgment for plaintiff, and defendant appealed to the St. Louis Court of Appeals, which thereafter, on defendant's motion, transferred the case to the Supreme Court. Cause ordered transferred back to Court of Appeals.

The plaintiff instituted this suit July 14, 1905, against the defendant in the circuit court of the city of St. Louis, based upon a judgment of the United States Court within and for the Southern District of the Indian Territory, for the sum of $1,010.30. Upon the same day a summons in the usual form was duly issued by the clerk of said court, returnable to the October term, and delivered to the sheriff of said city for service. Upon the same day said sheriff made the following return (formal parts omitted): "Served this writ in the city of St. Louis, Missouri, on the within named defendant, the Mercantile Town Mutual Insurance Company (a corporation) this 14th day of July, 1905, by delivering a copy of the writ and petition as furnished by the clerk to J. W. Daugherty, manager of the said defendant corporation, he being in said defendant's usual business office and in charge thereof. The president or other chief officer of said defendant could not be found in the city of St. Louis at the time of service." Thereafter, at the October term, 1905, of said court, said defendant filed its (special and limited) motion to quash said return, for the reason that it is insufficient in law, and does not confer jurisdiction over the person of the defendant. While said motion to quash was pending, and without notice to defendant, the court, on October 13, 1905, at the same term, permitted the sheriff to amend his return by interlineation so as to read as follows (caption and signature of sheriff omitted): "Served this writ in the city of St. Louis, Missouri, on the within-named defendant, the Mercantile Town Mutual Insurance Company (a corporation), this 14th day of July, 1905, by delivering a copy of the writ and petition as furnished by the clerk to J. W. Daugherty, manager of the said defendant corporation, he being in said defendant's principal office and in charge thereof. The president or other chief officer of said defendant could not be found in the city of St. Louis at the time of service." Thereafter, but upon the same day, the court overruled defendant's said motion to quash.

On December 4, 1905, during the December term of said court, the court rendered judgment by default in favor of the plaintiff and against the defendant for the sum of $1,055.30, the amount of the judgment, interest, and costs due on the said Indian Territory judgment. During the same December term of said court, the defendant filed therein the following special motion to set aside said default and judgment (formal parts omitted): "Defendant (appearing specially by its attorneys for the purposes of this motion only and for no other purpose) moves this court to set aside the judgment rendered in the above-entitled cause of Kahn v. Mercantile Town Mutual Insurance Company for the following reasons, to wit: (1) This court has no jurisdiction over the person of this defendant in this cause. (2) This court has not acquired jurisdiction over the person of this defendant in this cause. (3) This court has no jurisdiction over the subject-matter of this suit under the United States statutes applicable to the Indian Territory which govern the subject-matter mentioned in plaintiff's petition. (4) The judgment herein is irregular because prematurely rendered. (5) The judgment herein is irregular because it was rendered by default, without any inquiry of damages. (6) Under the Constitution of the United States (article 1, § 8) and the United States laws applicable to the Indian Territory, the said Territorial Court (mentioned in the petition herein) had no jurisdiction to enter the alleged judgment on which this suit is founded. (7) The said judgment was rendered in violation of the rights, privileges, and immunities of defendant under the Constitution of the United States (article 1, § 8, and article 4, § 1, and the fourteenth amendment, § 1). (8) The petition is founded on an alleged judgment purporting to be filed therewith as an exhibit, when, in fact, said exhibit was not filed until November 16, 1905, and the judgment in this court thereon is therefore irregular. (9) The judgment by default was entered before the time for defendant to plead had expired. (10) The judgment herein is excessive. (11) The court erred in allowing an amendment of the return herein and entering judgment thereon."

And thereafter, at the same term, December 8, 1905, defendant filed its motion in arrest, as follows (caption omitted): "Defendant (appearing specially by its attorneys for the purposes of this motion only and for no other purpose) moves this court to arrest the judgment in the above-entitled cause of Kahn v. Mercantile Town Mutual Insurance Company for the following reasons, to wit: (1) The petition does not state facts sufficient to constitute a cause of action. (2) The court had no jurisdiction over the person of this defendant to render judgment against this defendant at the time when said judgment was rendered. (3) This court has no jurisdiction over the subject-matter of this suit."

At the February term of said court defendant's said motions to set aside said judgment and in arrest of judgment were by the court overruled. The defendant properly excepted to each of said rulings of the court. From the judgment of the circuit court, the defendant duly appealed the cause to the St. Louis Court of Appeals. On February 5, 1907, the latter court handed down an opinion, written by Bland, P. J., in which the other judges concurred, affirming the judgment of the circuit court in all things. In due time the defendant filed a motion for a rehearing. The record here does not disclose what disposition was made of that motion. Thereafter the defendant also filed in said Court of Appeals a motion to transfer said cause to this court for the following reasons stated: "(1) Defendant in the trial court by its motion duly filed claimed immunity from the judgment rendered herein, invoking federal statutes cited in appellant's brief and argument in this court. The said claim of appellant was presented in the most formal way to the circuit court by motion, of which the following is a part, and the same points were made in this court." (Then follows a copy of the third, sixth, and seventh reasons assigned by defendant in its motion filed in the circuit court, asking that court to set aside the default and judgment rendered therein against it.) Proceeding: "The federal laws put the Indians and their reservations under protection of the United States, and persons asserting rights in that country must do so under federal statutes. We claim that those statutes do not warrant or authorize the judgment sued upon in this case. That is a question involving the construction of federal law alone, and as such it is distinctly a federal question falling within the reviewing authority of the Supreme Court—[citing certain cases]. (2) Under the Constitution and laws of Missouri, the question of the extent of jurisdiction of the federal courts in the Indian Territory and of the limits of the jurisdiction of the tribal courts under the federal statutes are questions of federal cognizance, which must be finally determined by the federal judicial authority. If your honors will read the brief heretofore submitted in this appeal, you will see that some of the contentions of appellant depend upon federal legislation and a construction of the federal statutes relating to the subject-matter involved in the case. Under the uniform course of decisions of the state and federal courts, a federal question is involved in this appeal; and therefore it should be transferred to the Supreme Court for final adjudication. The briefs heretofore submitted in this court distinctly raised these questions. They were duly raised in the trial court. We respectfully submit that every proper step was taken to bring the case within the appellate reviewing jurisdiction of the Supreme Court of the state and of the United States Supreme Court, in event the decisions of the state courts should be adverse to the claims made by this appellant under the federal statutes. The state and federal decisions support this view, and upon their authority we most respectfully request that this cause be transferred to the Supreme Court—[citing authorities]. The idea advanced in the learned opinion that the recital in the pleadings show only by the record of the judgment of the Court in the Indian Territory (as sued upon) will support the judgment does not avoid our point (based on the federal cases) to the effect that parties residing in the domain of the civilized tribes (of which the Chickasaws are one) are not subject to the United States courts there except in special circumstances not averred or shown here—[citing cas...