Kahn v. Mercantile Town Mutual Ins. Company

• Decision Date: 12 July 1910
• Parties: LEON KAHN, Respondent, v. MERCANTILE TOWN MUTUAL INSURANCE COMPANY, Appellant
• Court: Missouri Court of Appeals

130 S.W. 492

150 Mo.App. 393

LEON KAHN, Respondent, v. MERCANTILE TOWN MUTUAL INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

July 12, 1910

June 28, 1910, Submitted on Briefs

Appeal from St. Louis City Circuit Court.--Hon. Moses N. Sale Judge.

Judgment affirmed.

Barclay Shields & Fauntleroy for appellant.

(1) The original return of service on the official in charge of "defendant's usual business office" was fatally deficient under the law requiring service on the person in charge of the "principal office of such company," as defendant. R. S. 1899, sec. 8092; Thomason v. Ins Co., 89 S.W. 564. (2) The trial court erred in permitting an amendment of the return, without notice thereof to defendant and entering judgment against defendant thereon. Trust Co. v. Railroad, 93 S.W. 944. (3) After the trial court allowed the amendment of the return, at the October term, 1905, it was error to permit a default to be taken against defendant, December 4, 1905, before the time to plead at the December term had expired; and for that error the judgment was "irregular because prematurely rendered," as assigned in defendant's special motions in the trial court. Trust Co. v. Railroad, 93 S.W. 944. (4) The rendition of final judgment "by default without any inquiry of damages was erroneous, because the petition does not aver that the alleged judgment was rendered" by a court of record; the averment that the court was "of general jurisdiction" is not equivalent to the required averment. R. S. 1899, secs. 774, 775; Bank v. Marlow, 71 Mo. 618. It is error to enter judgment final upon default (without inquiry of damages and a hearing thereon accorded to defendant) except in those cases permitted by statute where the suit is alleged to be founded on an instrument of writing or on the judgment of a court of record. Wetzell v. Waters, 18 Mo. 396; White v. Snow, 71 N.C. 232; Hammerslough v. Farrior, 95 N.C. 135; Mayfield v. Jones, 70 N.C. 536. As plaintiff claimed interest for nearly two years before the date of the first judgment and an unnamed amount of costs in addition to the amount of the judgment itself, that part of plaintiff's demand was obviously unliquidated and not within the record of judgment, and hence the default should have been followed by an inquiry of damages. Noyes v. Newmarch, 1 Allen 51; Railroad v. Chicago, 53 Ill. 80; Lightsey v. Harris, 20 Ala. 51. (5) The judgment sued on was not good as a basis for a second judgment because uncertain as to amount. It is invalid as to the back interest (no rate named) and as to the untaxed costs. Simmons v. Garrett, McCahon (Kan.) 82; Troxwell v. Fugate, Hard. (Ky.) 2; Prince v. Lamb, 1 Ill. 378. (6) The petition does not state a cause of action. It appears from the petition affirmatively that the judgment sued upon was rendered by a court of special or limited jurisdiction, namely, the United States Court in the Indian Territory. Such a Federal court is of limited and special jurisdiction, and the essential facts to show its jurisdiction must appear affirmatively in a suit on its judgment in another state. Crabtree v. Madden, 54 F. 428; Turner v. Bank, 4 Dall 11; Confiscation cases, 20 Wall. 108; Colo. Co. v. Turck, 150 U.S. 143; Wolfe v. Ins. Co., 148 U.S. 389; Lucas v. U.S. 163 U.S. 612. (7) If it be claimed that in pleading a foreign judgment by a court of limited or special jurisdiction, our code allows the plaintiff to over that it "was duly given or made," instead of stating "the facts conferring jurisdiction," the court will note that no such statutory formula is used in the petition here. It is averred only that "a judgment was by said court rendered," etc., which is fatally wide of the statutory substitute for jurisdictional facts. R. S. 1899, sec. 634; Mears v. Shaw, 32 Mont. 575 (81 P. 338); Judah v. Fredericks, 52 Cal. 386; Young v. Wright, 52 Cal. 407; Hunt v. Dutcher, 13 How. Pr. 538; Pomeroy, Rem. Rights (2 Ed.), sec. 640. (8) The petition omits to make any allegation of citizenship of the parties to the first action or judgment or of the amount of the original claim in that action. These are fatal omissions in a suit on a foreign judgment. The jurisdictional facts should be recited in the petition. Mansfield Ry. v. Swan, 111 U.S. 382; Karns v. Kunkle, 2 Minn. 313; Hofheimer v. Losen, 24 Mo.App. 652; Wise v. Loring, 54 Mo.App. 258; Railroad v. Hyde, 56 F. 188. (9) The averment of the amount of the recovery does not supply a want of averment of amount of the demand sued for, which furnishes the test of the amount in controversy in the first suit, and on the amount in controversy depended the Federal jurisdiction. There must first be jurisdiction before a judgment is reached. U. S. v. Sayward, 160 U.S. 493; Scott v. Donald, 165 U.S. 58. (10) In seeking to enforce a judgment of another state against a corporation foreign there, the facts necessary to confer jurisdiction to render the judgment must be alleged affirmatively. Here they are not even hinted at. This is a general, well-accepted rule. St. Clair v. Cox, 106 U.S. 350; Henning v. Ins. Co., 28 F. 440; Hazeltine v. Ins. Co., 55 F. 746; Earle v. Railroad, 127 F. 237; Hofheimer v. Losen, 24 Mo.App. 652; Hollister v. Hollister, 10 How. Pr. 539; McLaughlin v. Nichols, 13 Abb. Pr. 244. (11) The Federal laws which confer jurisdiction on the United States Court in the Indian Territory exclude cases over which the tribal courts have jurisdiction; and under the laws governing the Indian country, the jurisdiction of the United States Court does not reach such a case as is described in plaintiff's petition herein. 26 U. S. St. at L. 81, ch. 182; Crabtree v. Madden, 54 F. 428; Sneed v. Sellers, 66 F. 371; Briscoe case, 40 F. 273; Harkness v. Hyde, 98 U.S. 476; Lucas v. U.S. 163 U.S. 612.

Lee W. Grant and Pierre B. Kennedy for respondent.

(1) The courts of this state will permit amendments to be made to the return of a writ to correspond with the facts of the case and if the amendment be made at a term subsequent to the return term it will relate back to the proper return day. Webster v. Marsh, 39 Mo. 500. (2) Even had defendant filed a motion to require plaintiff to file the transcript of the judgment this would not have dispensed with the necessity of answering. A default could have been taken while this motion was pending if no answer was filed. Hill v. Meyer, 47 Mo. 585. (3) A judgment of a United States court cannot be attacked for irregularity or error. Reed v. Vaughan, 15 Mo. 137; Copenhaver v. Stewart, 118 Mo. 377; Wonderly v. Lafayette County, 150 Mo. 635; Bracken v. Milner, 99 Mo.App. 187. (4) Objection to a judgment as being excessive cannot be raised in a collateral proceeding. Howard v. Still, 14 Mo.App. 584. Every presumption is indulged in favor of the regularity and validity of a judgment. Bearden v. Miller, 54 Mo.App. 199.

OPINION

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 motions 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; Judges VALLIANT, LAMM and GRAVES concurring on grounds differing from that announced by Judge WOODSON. See 228 Mo. 585, 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, Indian Territory, 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, Missouri. 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, Indian Territory; and also admitted that it was a foreign corporation, engaged in the insurance business and its principal place of business was in the ...