Mertens v. McMahon

Decision Date06 December 1933
Docket NumberNo. 30899.,30899.
Citation66 S.W.2d 127
CourtMissouri Supreme Court
PartiesHENRY J. MERTENS v. JOSEPH F. McMAHON, Appellant.

Appeal from Gasconade Circuit Court. Hon. R.A. Breuer, Judge.

REVERSED AND REMANDED (with directions.)

Leahy, Saunders & Walther and Lyon Anderson for appellant.

(1) The court erred in refusing to sustain defendant's plea in abatement. Groce v. Skelton, 206 Mo. App. 471; Christian v. Williams, 111 Mo. 429; Marsh v. Bast, 41 Mo. 493; Byler v. Jones. 79 Mo. 261; Capital City Bank v. Knox, 47 Mo. 333; Wilson v. Donaldson, 117 Ind. 356, 20 N.E. 250; Andrews v. Lembeck, 46 Ohio St. 38, 18 N.E. 483; Mitchell v. Wixon, 53 Mich. 541, 19 N.W. 176; Shaver v. Letterby, 73 Mich. 500, 41 N.W. 677; Bolgrano v. Gilbert Lock Co., 73 Md. 132, 20 Atl. 788; Bolz v. Crone, 64 Kan. 570, 67 Pac. 1108; Wells v. Patton, 50 Kan. 732, 33 Pac. 15; Fidelity & Cas. Co. v. Everett, 97 Ga. 787, 25 S.E. 734; First Natl. Bank v. Ames, 39 Minn. 179, 39 N.W. 308; Sherman v. Gundlach, 37 Minn. 118, 33 N.W. 548; Linton v. Cooper, 54 Neb. 438, 74 N.W. 842; Ela v. Ela, 68 N.H. 312, 36 Atl. 15. (2) The court erred in refusing to give and read to the jury the instruction offered by defendant at the close of the whole case, which instruction required a finding by the jury in favor of plaintiff for $174.20 with interest, the indebtedness admitted by defendant, since plaintiff was under a legal obligation to perform the work sued for in this action at the time of the alleged promise. (a) A promise to perform an existing contract made in consideration of the doing of an act, which the promisor is already under obligation to do by reason of his contract is not supported by a consideration and is a mere nudum pactum. Lingenfelder v. Brewing Co., 103 Mo. 578; Wilt v. Hammond, 179 Mo. App. 406, 165 S.W. 362; Koslosky v. Block, 177 S.W. 1060; Hunter Land & Development Co. v. Watson, 236 S.W. 670; Tucker v. Bartle, 85 Mo. 114; Storck v. Mesker, 55 Mo. App. 26; Price v. C.M. & St. P. Ry. Co., 40 Mo. App. 189. (b) Being a promise to answer for the defendant of another the same should be in writing to be binding. (3) The court erred in refusing to admit in evidence defendant's Exhibit B. Lingenfelder v. Brewing Co., 103 Mo. 578; Wilt v. Hammond, 179 Mo. App. 406, 165 S.W. 362; Koslosky v. Block, 191 Mo. App. 257, 177 S.W. 1060; Peck v. Harris, 57 Mo. App. 467; Brown v. Irving, 269 S.W. 686; Hunter Land & Development Co. v. Watson, 236 S.W. 67; Tueker v. Bartle, 85 Mo. 114; Storck v. Mesker, 55 Mo. App. 26; Minks Bros. v. Gillorz, 256 S.W. 516; McFarland v. Heim, 127 Mo. 327; Price v. C., M. & St. P. Ry. Co., 40 Mo. App. 189. (4) The court erred in refusing to admit in evidence the plaintiff's deposition. A party to a suit does not occupy the position of a witness. The statements of the latter are admissible for the purpose of contradicting or impeaching him and then a foundation must be laid, but the statements of a party contained in a deposition are admissible as original evidence against him without a foundation being laid. Southern Bank v. Nichols, 202 Mo. 309; Bogie v. Nolan, 96 Mo. 85; State v. Chatham Natl. Bank, 80 Mo. 626; Wilson v. Salisbury, 167 Mo. App. 191; Valleroy v. Knights of Columbus, 13 Mo. App. 574; Black v. Epstein, 221 Mo. 302; Case Plow Wks. v. Ross, 74 Mo. App. 437; Padley v. Catterlin, 64 Mo. App. 629; Sanders v. Clifford, 72 Mo. App. 548; Owens v. Kansas City, etc., Ry. Co., 95 Mo. 169; Vest v. Kresge Co., 213 S.W. 165; Kleeper v. Kleeper, 193 Mo. App. 59; Gubernator v. Rettalack, 86 Mo. App. 184.

L.G. Graf, Luke E. Hart and Herbert M. Hart for respondent.

(1) Did the defendant enter his appearance? It is well settled that a defendant may waive any question as to service and jurisdiction over his person by entering his appearance in the cause and it is our contention that the defendant enter his appearance and thereby waived any question as to the sufficiency of the service. This contention is based upon the fact that the defendant, (a) consented to a continuance of the case, (b) filed the motion to quash which alleged matters of abatement and defense and thereafter filed an answer to the merits of the case, and (c) voluntarily submitted himself to the jurisdiction of the court by asking that the jury be instructed to render a verdict in favor of the plaintiff for $178. (a) By consenting to a continuance, defendant entered his appearance. In this connection, reference is made to the following decisions: Brewery Co. v. Forgey, 140 Mo. App. 610; Ice & Fuel Co. v. Van Hooser, 163 Mo. App. 592; Allen v. Welch, 125 Mo. App. 284; Higgins v. Beckwith, 102 Mo. 464; Bohn v. Devlin, 28 Mo. 319; Baisley v. Baisley, 113 Mo. 551; Seay v. Sanders, 88 Mo. App. 485; Bankers Life Assn. v. Shelton, 84 Mo. App. 639. (b) Defendant's pleadings amounted to an entry of appearance. In this connection, see the following: 4 C.J., pp. 1318, 1320; Tower v. Moore, 52 Mo. 118; State v. Grimm, 239 Mo. 135; Newcomb v. Railroad, 182 Mo. 687; Kronski v. Railroad, 77 Mo. 368; Thomason v. Ins. Co., 114 Mo. App. 109; Mahr v. Union Pacific, 140 Fed. 921; 4 C.J. 1318. (c) By asking that the jury be instructed to render a verdict in favor of plaintiff for $178, the plaintiff voluntarily submitted himself to the jurisdiction of the court. 4 C.J., pp. 1318-19, 1333, 1340, 1367; Tower v. Moore, 52 Mo. 118; Newcomb v. Railroad, 182 Mo. 687; State v. Grimm, 239 Mo. 135; Bates & Wright v. Scott, 26 Mo. App. 428; Merchants Heat Co. v. Clow, 204 U.S. 286; Chandler v. Citizens Bank, 149 Ind. 604; Woodhouse v. Nelson, 91 Kan. 823; Thompson v. Greer, 62 Kan. 522; Cameron v. Kiowa County, 44 Okla. 67; Austin Mfg. Co. v. Hunter, 16 Okla. 86; Coad v. Coad, 41 Wis. 26; Lower v. Wilson, 9 S.D. 252; 2 Enc. Pl. & Prac., pp. 625, 626, 627. (2) The service upon the defendant was legal. In this connection see the following authorities: Christian v. Williams, 111 Mo. 429; Baisley v. Baisley, 113 Mo. 544; State ex rel. v. Moore, 164 Mo. App. 649; Bledsoe v. Letson, 215 S.W. 513.

STURGIS, C.

This cause is in this court on certification by the Kansas City Court of Appeals because that court deemed its opinion in the case in conflict with an opinion by the St. Louis Court of Appeals. The suit is the third one which the plaintiff has filed against defendant for the cause of action sued upon, to-wit, for work and labor done and material and tools furnished in connection with the construction of a State Highway in Gasconade County, asking judgment in each case for $2,170.54. The defendant is the general contractor for the construction of the highway and one Christ J. Haeffner was subcontractor under him to do the grading work. The real contest between the parties is as to whether plaintiff did this work for the defendant as general contractor or for the subcontractor, Haeffner, but that is not the principal question here. The question here is one of jurisdiction of the court over the person of the defendant, who is the appellant from a judgment against him.

This question arises in this way: The defendant was at all times a resident of the city of St. Louis and the plaintiff a resident of Gasconade County. After the road work was all done, the plaintiff claiming that defendant had agreed to pay him therefor, brought suit against him in St. Louis and got service on him there, the place of his residence. For some reason not fully disclosed by the record plaintiff later dismissed that suit. Just before dismissing the first suit, plaintiff brought another suit on the same cause of action in Gasconade County, where plaintiff resided, against defendant and the subcontractor, Christ J. Haeffner, also a resident of Gasconade County, claiming that both such defendants were liable to him for the work done and tools furnished in this road work. Plaintiff obtained service on the defendant Haeffner in Gasconade County and had summons issued to St. Louis and served on this defendant there. This was proper for the reason that one of the defendants was a resident of the venue of the suit. Section 720, Revised Statutes 1929, subdivision 2. However, when that cause came on for hearing this defendant, appearing for that purpose only, filed his answer containing a general denial and a plea in abatement and to the jurisdiction of the court, alleging "that the said other defendant herein named, Christ J. Haeffner, is not a necessary or proper party to this proceeding, and is joined herein for the sole purpose of attempting to confer jurisdiction on this court against said defendant. Joseph F. McMahon; that the said Haeffner is not an `adverse party' within the meaning of the statute in such cases made and provided; ... that the joinder of said Christ J. Haeffner, defendant herein, is colorable, fraudulent and fictitious ...: that under the statutes of this State and the decisions construing the same, the said joinder of said Haeffner for the purpose aforesaid is prohibited and forbidden." This plea to the jurisdiction also recited the bringing of the first suit by plaintiff against this defendant in St. Louis defendant's appearance therein, and the dismissal of same soon after the filing of this second suit in Gasconade County. The record does not show any of the details of the trial of such second suit (the first one in Gasconade County), but a judgment was entered therein at the September Term, September 16, 1925, reciting the appearance of the parties, "and the matters and things herein being now submitted to the court, upon the pleadings and evidence adduced by both parties in said cause, the court, upon consideration of the same, doth sustain said plea in abatement. It is therefore considered and adjudged by the court that the petition filed herein be and the same is hereby dismissed as to Joseph F. McMahon." It is not shown what was done in that case as the joint defendant, Christ J. Haeffner.

On the same day the said second suit was disposed of as stated, September 16,...

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