Meyer v. Phenix Ins. Co.

• Decision Date: 23 November 1904
• Citation: 184 Mo. 481,83 S.W. 479
• Parties: MEYER v. PHENIX INS. CO.
• Court: Missouri Supreme Court

83 S.W. 479

184 Mo. 481

MEYER v. PHENIX INS. CO.

Supreme Court of Missouri, Division No. 1.

November 23, 1904.

JUSTICES OF THE PEACE — JURISDICTION — FOREIGN INSURANCE COMPANY — TROVER AND CONVERSION — STATUTES — CONSTRUCTION — PLEADING — APPEAL — MOTIONS.

1. Rev. St. 1899, § 3838, provides that justices shall have jurisdiction coextensive with the county for which they are elected or appointed, and that, where the defendant is a foreign insurance company, they shall have authority to issue process therein and direct the same for service to any constable or sheriff where the Superintendent of Insurance resides or has his office. Section 3839 provides that actions before justices shall be brought in the township where the defendants, or one of them, resides, or in any adjoining township, or in any county where the defendant may be found, when the defendant is a nonresident. Held, that within these sections a foreign insurance company is a resident of every county and township in the state, and hence trover and conversion against such company for an amount within the jurisdiction of a justice is properly brought in a county other than that of the residence of the plaintiff, process having been served on the company under section 7991, authorizing the Superintendent of Insurance to accept service of summons in actions against foreign insurance companies.

2. A plea to the jurisdiction as to the person as well as to the subject-matter may be united with a plea to the merits without waiving the question of the jurisdiction.

3. Where defendant made timely objection to the jurisdiction of its person before a justice, and, on the justice ruling against it, took an appeal to the circuit court, there was no waiver of the question of jurisdiction of the person merely because of the appeal.

4. Where defendant made timely objection to the jurisdiction of its person before a justice, the fact that after the objection was overruled it filed a motion for security of costs was not a waiver of the question of the jurisdiction.

Appeal from Circuit Court, Montgomery County; E. M. Hughes, Judge.

Action by Henry Meyer against the Phenix Insurance Company. From a judgment for plaintiff, defendant appeals. Case certified to Supreme Court by St. Louis Court of Appeals (69 S. W. 638). Affirmed.

Peers, Femmer & Peers, for appellant. E. Rosenberger & Son, for respondent.

MARSHALL, J.

This is an action for $50 damages for conversion of a heifer. The plaintiff was then and is now a resident of Warren county, and the defendant is and was a foreign insurance company licensed to do business in this state. The suit was begun before a justice of the peace in Montgomery county, and a summons was issued to the constable of Jefferson township, in Cole county, and was served by him by delivering a copy thereof to the Superintendent of the Insurance Department of the State (whose residence and office was then in Cole county), as provided by sections 3838 and 7991, Rev. St. 1899. Judgment by default was entered for the plaintiff by the justice. In due time thereafter the defendant filed a motion to set aside the default and to reinstate the case on the docket, on the grounds that the justice had no jurisdiction to hear, try, and determine the cause, and that the judgment was void for want of jurisdiction in the court. The motion was overruled, and the defendant appealed the cause to the circuit court. The defendant, limiting its appearance to that purpose, filed a motion in the circuit court to dismiss the cause on the ground that the circuit court had no jurisdiction to try, hear, and determine the same, and that the justice had acquired no jurisdiction of the cause. The motion was overruled, and exception saved. The defendant then filed a motion for security of costs, and, upon this being overruled and exception saved, the defendant stood aside, and let judgment go against it by default, and then, after proper steps, appealed to the St. Louis Court of Appeals. That court held that by taking an appeal from the justice of the peace to the circuit court the defendant had entered its appearance to the action, and, as the action was transitory, the justice of the peace had jurisdiction of the subject-matter, and thus it had jurisdiction of both the subject-matter and of the person, and therefore the judgment of the circuit court was affirmed; but as that court was of opinion that its decision was in conflict with the decision of the Kansas City Court of Appeals in Trimble v. Elkin, 88 Mo. App. 229, the case was certified to this court, under section 6 of the amendment of 1884 to the Constitution, and it is therefore here for determination as in cases of jurisdiction obtained by ordinary appellate process.

1. Jurisdiction: The plaintiff resided in Warren county. The defendant is a foreign insurance company, licensed to do business in this state. The suit was begun in Montgomery county. The summons was served on the State Superintendent of Insurance in Cole county, as is authorized in such cases by sections 3838 and 7991, Rev. St. 1899. The subject-matter was $50 damages for conversion of personal property, and a justice of the peace has jurisdiction of such cases. There is therefore no question as to the jurisdiction of the court over the subject-matter. The only question for determination is as to the jurisdiction of the parties. The defendant is a foreign insurance company, and the summons was served upon it in exact conformity to the requirements and authority of sections 3838 and 7991, Rev. St. 1899. The defendant was therefore properly brought into court in the first instance. The plaintiff resided in Warren county, and the suit was brought in Montgomery county, and it is insisted that for this reason the justice had no jurisdiction, and section 3839, Rev. St. 1899, is relied on to support the contention. That section provides where suits before justices of the peace shall be brought, as follows: First, in the township where the defendants, or one of them, resides, or in any adjoining township; second, where the plaintiff resides, and the defendants, or one of them, may be found; third, if the defendant is a nonresident of the county in which the plaintiff resides, then before any justice of the county in which the plaintiff resides and the defendant may be found; fourth, if the...