Lieffring v. Birt
| Decision Date | 06 October 1941 |
| Docket Number | No. 19854.,19854. |
| Parties | LIEFFRING v. BIRT et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Caldwell County; Ira D. Beals, Judge.
Suit by Frank Lieffring against Charles Birt and others for damages for alleged illegal arrest and imprisonment. Motion to dismiss was sustained, and, from judgment denying his motion for new trial, plaintiff appeals.
Judgment reversed and cause remanded.
O. J. Adams, of Kingston, and S. P. Reynolds and A. Bowers, both of St. Joseph, for appellant.
John J. Robison, of Maysville, for respondents.
SPERRY, Commissioner.
Plaintiff, Frank Lieffring, appellant here, sued Charles Birt, Coulson Sherard, Carl Ketchum and Hannibal Morrison, defendants, for damages growing out of an alleged illegal arrest and imprisonment. Ketchum and Morrison demurred to plaintiff's petition and the demurrer was sustained, from which ruling of the trial court no appeal was ever taken. After the term had passed defendants Birt and Sherard moved to dismiss the petition against them because of lack of jurisdiction. The motion was sustained and, from an adverse ruling on his motion for new trial, plaintiff has appealed.
It appears from the record that defendant Birt lodged a criminal charge against plaintiff and that a warrant was issued thereon, directing defendant Sherard, then sheriff of DeKalb County, to arrest plaintiff, who then resided in Buchanan County. Sherard executed said warrant in Buchanan County by taking plaintiff into custody; and Sherard was assisted in making the arrest by defendants Ketchum and Morrison, both of whom were members of the St. Joseph Police Department. Plaintiff was discharged and thereafter, on September 15, 1938, filed this suit for damages against all defendants herein named.
This suit was instituted in Buchanan County, the place of residence of plaintiff and of defendants Ketchum and Morrison, both of whom were served with process in that county. Process, issued by the Buchanan Circuit Court, was duly served on respondents in DeKalb County.
On December 22, 1938, respondents herein, Birt and Sherard, filed motion for change of venue, which motion was sustained and the cause was transferred to Caldwell County. On March 23, 1939, respondents filed motion for costs, which motion was duly sustained.
On March 23, 1939, the court sustained demurrer, theretofore filed by defendants Ketchum and Morrison, from which action of the court no motion for new trial was ever filed nor any appeal ever taken.
On June 19, 1939, during the next term of court after the court ruled the demurrer above mentioned, the court overruled demurrer theretofore filed by respondents. Thereafter, and during the same term of court that their demurrer had been overruled, respondents filed their motion to dismiss, on the grounds that they are non-residents of Buchanan County, and were non-residents when the suit was filed and service had upon them, and that, since the court had sustained the demurrer of defendants Morrison and Ketchum, the only defendants joined who were residents of Buchanan County, the court had no jurisdiction over respondents in said action. The court sustained the motion.
There is no question but that respondents were entitled to a dismissal of the cause of action if they had raised the question of service at the proper time and in the proper manner. They cite Graham v. Ringo, 67 Mo. 324, loc.cit. 326; Winter v. Commercial Bank, Mo.App., 238 S.W. 833, loc.cit. 834, 835; State ex rel. Jackson v. Bradley, 193 Mo. 33, loc.cit. 39, 40, 91 S.W. 483; State ex rel. Dutcher v. Shelton, 249 Mo. 660, 156 S.W. 955, loc. cit. 961. We have read said decisions and think there is no question but that the language therein is clear; but in each of said cases the jurisdictional question herein mentioned was raised before defendant had, by any act, entered his general appearance.
The record in the case at bar discloses that no jurisdictional question was raised by respondents until after they had filed, and the court had granted, an application for change of venue. After the cause had been transferred from the circuit court of Buchanan County to the circuit court of Caldwell County respondents, for the first time, filed motion for dismissal because of lack of jurisdiction. The Buchanan court had jurisdiction of the subject matter of the suit and,...
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