Kahn v. Mercantile Town Mut. Ins. Co.

• Decision Date: 12 July 1910
• Citation: 150 Mo. App. 393,130 S.W. 492
• Parties: KAHN v. MERCANTILE TOWN MUT. INS. CO.
• Court: Missouri Court of Appeals

130 S.W. 492

150 Mo. App. 393

KAHN v. MERCANTILE TOWN MUT. INS. CO.

St. Louis Court of Appeals. Missouri.

July 12, 1910.

1. PROCESS (§ 164)—AMENDMENT — NOTICE— PARTIES IN COURT — PETITION TO AMEND SUMMONS.

Where defendant has filed a motion to quash the summons, and being in court, either actually or constructively, he is not entitled to special notice of an application by plaintiff to permit the sheriff to amend his return on the summons.

2. PROCESS (§ 164)—AMENDMENT—RELATION BACK TO DATE OF SERVICE.

A sheriff's amendment of his return of process relates back to the date of actual service.

3. JURY (§ 25)—ASSESSMENT OF DAMAGES— RIGHT TO A JURY—NECESSITY OF DEMAND.

By failure to request a jury to assess damages as authorized by Rev. St. 1899, § 775 (Ann. St. 1906, p. 751), a party waives his right to a jury for that purpose.

4. JUDGMENT (§ 938)—ACTION ON FOREIGN JUDGMENT—FEDERAL COURT—JURISDICTION —PETITION—SUFFICIENCY OF.

The plaintiff, in an action on a judgment obtained against an insurance company on a policy in the United States Court in Indian Territory, alleged in his petition that he was a citizen of the United States and resided in Indian Territory, and that defendant's chief office was in St. Louis, Mo., which allegations were admitted by defendant. Held, that the jurisdiction of the United States Court in Indian Territory over the parties was thereby shown under Act Cong. March 1, 1899, c. 333, § 6, 25 Stat. 784, providing "that the court hereby established (United States Court in the Indian Territory) shall have jurisdiction in all civil cases between citizens of the United States who are residents of the Indian Territory * * * or of any state or territory therein."

5. JUDGMENT (§ 829)—JUDGMENTS OF FEDERAL COURTS—PRESUMPTIONS.

A judgment rendered by a United States court is entitled to equal rank and presumption of regularity as judgments of the circuit courts of this state.

6. JUDGMENT (§ 946)—ACTION ON FOREIGN JUDGMENT — INCLUSION OF INTEREST AND COSTS.

In an action on a foreign judgment, it was proper to include interest and costs in the amount of plaintiff's recovery.

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 this court, whence it was transferred to the Supreme Court, which transferred the appeal back (128 S. W. 995). Affirmed.

Barclay, Shields & Fauntleroy, for appellant. Lee W. Grant and P. B. Kennedy, for respondent.

REYNOLDS, P. J.

This case was brought on appeal to this court from the circuit court of the city of St. Louis; the certified copy of the judgment rendered and the order allowing the appeal being filed in this court May 5, 1906. It was submitted on briefs October 3, 1906, and on the 5th of February, 1907, the judgment of the circuit court was affirmed; the opinion of this court being written by the then presiding judge, the Honorable Charles C. Bland, in which all the court concurred. Afterwards, on motion made to transfer the case to the Supreme Court on the ground stated, among others, that it involved the construction of the Constitution of the United States and was not a cause within the appellate jurisdiction of this court, the judgment of affirmance theretofore rendered by this court was set aside and the cause transferred to the Supreme Court. In due course the cause came on to be heard in that court. On the 31st of May, 1910, an order was entered by the Supreme Court, transferring the cause back to this court; the Supreme Court reaching the conclusion that no federal questions had been raised in the circuit court and preserved so as to present a question conferring jurisdiction upon that court, all the judges of division No. 1 concurring in that conclusion, which was announced by Judge Woodson, and Judges Valliant, Lamm, and Graves concurring on grounds differing from that announced by Judge Woodson. See 128 S. W. 995. As this court in transferring the case to the Supreme Court did so solely on the question of jurisdiction, and not from any doubt as to the correctness of the conclusion reached by it on the merits, and as the question of jurisdiction is now settled by the Supreme Court, counsel having submitted the case on the briefs heretofore filed, it is only necessary, in disposing of the case, to adopt the opinion heretofore handed down by Judge Bland, which, with the statement made by him, is as follows:

"In September, 1904, plaintiff brought an action in the United States Court of the Southern District, at Ada, Ind. T., to recover on a policy of insurance against loss by fire, issued by defendant to plaintiff. In his petition plaintiff alleged that he was a citizen of the United States, and a resident of the town of Roff, Chickasaw Nation, Indian Territory; that defendant was a foreign corporation, engaged in the business of fire insurance, whose office and principal place of business was in the city of St. Louis, Mo. Defendant was duly served with process in Indian Territory, and on December 30, 1904, appeared in the United States court to said action and filed its answer, wherein it admitted plaintiff was a citizen of the United States and a resident of the town of Roff, Ind. T.; and also admitted that it was a foreign corporation, engaged in the insurance business,...