Liechty v. Kansas City Bridge Co.

• Decision Date: 04 November 1941
• Docket Number: No. 25848.,25848.
• Citation: 155 S.W.2d 297
• Parties: LIECHTY v. KANSAS CITY BRIDGE CO. et al.
• Court: Missouri Court of Appeals

155 S.W.2d 297

LIECHTY v. KANSAS CITY BRIDGE CO. et al.

No. 25848.

St. Louis Court of Appeals. Missouri.

November 4, 1941.

Appeal from St. Louis Circuit Court; Joseph J. Ward, Judge.

"Not to be reported in State Reports."

Action by Cora A. Liechty against the Kansas City Bridge Company and another to have a divorce decree declared void and for an injunction. From a judgment dismissing the action, plaintiff appeals.

Judgment affirmed and cause certified to the Supreme Court.

Strubinger, Tudor & Tombrink, of St. Louis, for appellant.

Luke & Cunliff, of St. Louis, for respondent.

ANDERSON, Judge.

This cause was instituted in the Circuit Court of the City of St. Louis, on March 6, 1940, by Cora A. Liechty, plaintiff, who named the Missouri Workmen's Compensation Commission and Kansas City Bridge Company as defendants.

The petition sounded in equity, and alleged that on October 23, 1921, plaintiff was married to one Lewis Edwin Liechty; that on July 24, 1937, said Lewis Edwin Liechty suffered accidental injuries, arising out of and within the scope of his employment, while working for the defendant Kansas City Bridge Company, and as a result of which he died on said 24th day of July, 1937; that thereafter plaintiff, as the widow of said deceased employee, duly filed her claim with defendant Missouri Workmen's Compensation Commission.

The petition further alleged that defendant Bridge Company, in bar of said claim, was contending that plaintiff was not the widow of said Lewis Edwin Liechty, and had set up or intended to set up and offer in evidence, at any hearing of said claim, a purported decree of divorce obtained against her on September 20, 1935, in the District Court of Wyandotte County, Kansas, by Lewis Edwin Liechty; that said purported decree of divorce was invalid, and was a fraud on said court, in that said court never obtained jurisdiction of her person; that she never lived with said Lewis Edwin Liechty in the state of Kansas, and was never served with summons in Kansas or elsewhere; that said Lewis Edwin Liechty fraudulently conspired to keep her from having actual notice of said suit, as required by Section 60-1504 of the General Statutes of Kansas, in that he made an affidavit in aid of service by publication, swearing that he did not know, and with diligence had been unable to ascertain, whether plaintiff was living or dead, or her whereabouts, and was unable to send plaintiff registered notification of the institution of said action as required by the General Statutes of Kansas, while in truth and fact he was corresponding with plaintiff during all of said time, knew her address and her whereabouts, and corresponded with friends living where plaintiff was living and fraudulently conspired with them to return, marked "address unknown," any notification of said action sent to plaintiff, by reason of all of which said Court acquired no jurisdiction over plaintiff to enter a valid decree of divorce.

The petition further alleged that said Liechty left surviving him no minor children; that the defendant Kansas City Bridge Company was a self-insurer; that plaintiff was the lawful widow of said Liechty, and entitled to all the rights and privileges given by law to such widow; and that not only was the defendant Bridge Company threatening to introduce into evidence the Kansas divorce decree, but the defendant Missouri Workmen's Compensation Commission would also admit same in evidence, would be bound thereby, and would dismiss plaintiff's claim upon the holding that plaintiff was not the wife of said Lewis Edwin Liechty at the time of his death because of said divorce decree.

The prayer of the petition asked, (1) That said judgment of the District Court of Wyandotte County, Kansas, be declared null and void; (2) that the defendant Kansas City Bridge Company be enjoined from offering said judgment in evidence in any hearing of this plaintiff's claim for compensation now pending before the defendant Missouri Workmen's Compensation Commission; (3) that the defendant Missouri Workmen's Compensation Commission be forever enjoined from admitting said judgment in evidence in any hearing of said claim; (4) that further proceedings by or before the Missouri Workmen's Compensation Commission be stayed and abated pending the final disposition of this action; and (5) that plaintiff have such further relief as to the court should seem meet and proper.

Upon the filing of the foregoing petition, plaintiff secured the issuance of two writs of summons, one directed to the Sheriff of Jackson County for the Kansas City Bridge Company, and the other directed to the Sheriff of the City of St. Louis for the defendant Missouri Workmen's Compensation Commission, both of which writs were thereafter served.

The defendant Kansas City Bridge Company filed a motion to quash the summons served on it, alleging: That plaintiff was not a resident of the City of St. Louis; that the cause of action alleged in the petition did not accrue in the City of St. Louis; that Kansas City Bridge Company was a resident of Jackson County, Missouri; that defendant Missouri Workmen's Compensation Commission was not a resident of the City of St. Louis; that as a matter of law plaintiff could not secure a judgment or decree against defendant Workmen's Compensation Commission on the grounds or for the reasons set out in the petition; and that the court had no jurisdiction over Kansas City Bridge Company.

The defendant Missouri Workmen's Compensation Commission also filed a motion to quash the summons served on it, alleging that the said summons was purportedly served on it in the City of St. Louis; that plaintiff was not a resident of the City of St. Louis, but a resident of the State of Texas; that the cause of action alleged in the petition did not accrue in the City of St. Louis; that defendant Missouri Workmen's Compensation Commission was not a resident of the City of St. Louis; that the court was without venue and without jurisdiction over the subject matter or the persons, and as a matter of law could not make or issue a judgment or decree against this defendant on the grounds or for the reasons set out in plaintiff's petition; that the defendant Kansas City Bridge Company was a resident of Jackson County; that purported service was had on said defendant Kansas City Bridge Company in Jackson County; that as a matter of law plaintiff could not secure a judgment or decree against said defendant Kansas City Bridge Company on the grounds or for the reasons set out in plaintiff's petition; and that the court had no jurisdiction over defendant Missouri Workmen's Compensation Commission.

The parties, thereafter, entered into an agreed statement of facts, as follows:

"Come now the parties, the defendants Kansas City Bridge Company and the Missouri Workmen's Compensation Commission appearing specially and not generally, and for the limited purpose of submitting this agreed statement of facts for the consideration of the Court on the motions of defendants to quash the writ of summons and the service thereon and for no other purpose, and the plaintiff, and the parties agree that:

"Plaintiff herein is not now nor has she been at any of the times mentioned or referred to in her petition a resident of the City of St. Louis, Missouri;

"That defendant Kansas City Bridge Company is a corporation having its principal place of business and office in Kansas City, Jackson County, Missouri, and said defendant does not have and has not had an office or agent for the transaction of its usual and customary business in the City of St. Louis, Missouri.

"The accident and death suffered by plaintiff's former husband, Lewis Edwin Liechty, occurred either in St. Louis County or in St. Charles County but not in the City of St. Louis."

Defendants' motions were then submitted to the Court upon the record and agreed statement of facts, and the Court, after considering same, sustained both motions. Plaintiff thereafter refused to plead further, and a judgment of dismissal was entered by the court, whereupon plaintiff perfected her appeal to this Court.

In passing upon the questions presented by this appeal we will assume, without deciding, that the Missouri Workmen's Compensation Commission, in a legal sense, is a resident of the City of St. Louis, by reason of the statute, Section 3750, R.S.Mo.1939, which requires it to maintain an office in the City of St. Louis.

We will first pass upon the question of whether or not the trial court erred in sustaining the motion to quash filed by the Kansas City Bridge Company. A determination of that question depends upon whether plaintiff's petition stated facts sufficient to constitute a cause of action against the resident defendant Missouri Workmen's Compensation Commission, for it is a well-established rule of law that where the cause of action sued on did not accrue in the county where the suit is brought, and where there are several defendants, some resident of the county where suit is brought, and others not resident, it is essential to the court's jurisdiction that the petition state a cause of action against one of the resident defendants. Darby v. Weber Implement Co., 203 Mo.App. 200, 208 S.W. 116;...