Meyer v. Phenix Ins. Co.

Decision Date25 February 1902
Citation92 Mo. App. 392,69 S.W. 638
PartiesMEYER v. PHENIX INS. CO.
CourtMissouri Court of Appeals

Appeal from circuit court, Montgomery county; Elliott M. Hughes, Judge.

Action by Henry Meyer against the Phenix Insurance Company. From a judgment in favor of plaintiff, defendant appeals. Certified to supreme court.

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

BARCLAY, J.

This action was begun in August, 1900, before George W. Palmer, a justice of the peace, in Montgomery county, to recover $50 damages on an account charging defendant with the conversion of a heifer, the property of plaintiff. A summons was issued to the constable of Jefferson township, Cole county, Mo., which was served there upon defendant by a delivery of a copy to the superintendent of the insurance department of Missouri, August 30, 1900, according to the constable's return, which followed the requirements in that particular of section 7991, Rev. St. 1899. A judgment by default was entered before the justice September 17, 1900. Upon a hearing it was made final for the amount of plaintiff's demand. Two days afterwards defendant by its attorney filed a motion to set aside the default because the court had "no jurisdiction to hear, try, and determine said cause," and because the judgment was "void for want of jurisdiction." The justice overruled said motion. Defendant in due season filed an affidavit and bond for an appeal to the circuit court. The appeal as prayed was allowed by the justice. In the circuit court defendant by its counsel appeared specially to file a motion to dismiss for substantially the same reasons assigned in the motion to set aside the default before Justice Palmer. The circuit court overruled the motion, defendant duly saving an exception. That ruling was made November 20, 1900. On the next day defendant filed a motion for security for costs, which the court overruled on the day following, November 22, 1900. The cause came on for hearing November 23, 1900, and defendant declined to further plead. The judgment of the justice was affirmed. After an unsuccessful motion for new trial defendant took its appeal to this court, having duly preserved exceptions by a bill in the usual form.

It appears by a stipulation of the parties in the cause (filed on the day when the motion for new trial was overruled) that plaintiff was a resident of Warren county during the pendency of the suit from its beginning before the justice until said stipulation was filed in the circuit court, and that the defendant is a foreign corporation. The interesting discussion by learned counsel touching the sufficiency of the service of the original process in this action becomes immaterial to the result when we observe that the defendant took and perfected an appeal in proper form from the judgment of the justice. An action for $50 damages for converting a heifer is a transitory action. Plaintiff might have brought it anywhere, if defendant appeared and submitted to the jurisdiction of the court. Justice Palmer in Montgomery county had jurisdiction of the subject-matter of the cause; that is to say, he had lawful power to hear and determine actions of the general class to which the one at bar belonged at the time when it was begun. Rev. St. 1899, § 3835. This is the definition of that sort of jurisdiction fully recognized now in Missouri. Griffin v. Van Meter, 53 Mo. 430; Hagerman v. Sutton, 91 Mo. 531, 4 S. W. 73; Hope v. Blair, 105 Mo. 85, 16 S. W. 595, 24 Am. St. Rep. 366; Railroad Co. v. Lowder, 138 Mo. 533, 39 S. W. 799, 60 Am. St. Rep. 565; Winningham v. Trueblood, 149 Mo. 580, 51 S. W. 399.

It is not disputed that the circuit court had jurisdiction of the appeal by defendant from the justice to that court. But it is claimed on defendant's behalf that, notwithstanding said appeal duly taken by defendant, the circuit court had no jurisdiction to enter the judgment it pronounced. The existing statute law, intending, no doubt, to alter the rule declared in Insurance Co. v. Reisinger (K. C. 1891) 43 Mo. App. 571, under the former law, authorizes a justice to issue process of summons and direct the same for service to any constable or sheriff of the city or county where the state superintendent of insurance resides or has an office, in cases where, as here, an insurance company not incorporated in Missouri is defendant. Rev. St. 1899, §§ 3838, 7991. Whether the terms of the present law on that point are broad enough to support the proceedings now under review had defendant taken no appeal to the circuit court we need not attempt to determine, inasmuch as we are of opinion that said appeal by defendant...

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23 cases
  • State ex rel. Duraflor Products Co. v. Pearcy
    • United States
    • Missouri Supreme Court
    • June 3, 1930
    ...the case was appealed. Levine v. Marchisic, 270 S.W. 645; Beers v. Railway, 55 Mo. 292; In re Whitman's Estate, 89 Mo. 58; Meyers v. Insurance Co., 92 Mo.App. 392; ex rel. v. Mosman, 112 Mo.App. 540; Harper v. Baker, 9 Mo. 74. (4) Plaintiff has no right or remedy by appeal or writ of error,......
  • Cudahy Packing Co. v. Chicago & Northwestern Railway Co.
    • United States
    • Missouri Supreme Court
    • April 9, 1921
    ... ... did not waive the defects of jurisdiction. Meyer v. Ins ... Co., 184 Mo. 481; Bente v. Typewriter Co., 116 ... Mo.App. 77; State ex rel ... ...
  • Powell v. St. Louis, I. M. & S. Ry. Co
    • United States
    • Missouri Court of Appeals
    • July 2, 1915
    ...operate to enter an appearance there so as to confer jurisdiction over the person. Not long thereafter the case of Meyer v. Phenix Ins. Co., 92 Mo. App. 392, 69 S. W. 638, came before this court for review on appeal from the circuit court of Montgomery county. The defendant in that case was......
  • State ex rel. Products Co. v. Pearcy
    • United States
    • Missouri Supreme Court
    • June 3, 1930
    ...case was appealed. Levine v. Marchisic, 270 S.W. (Mo.) 645; Beers v. Railway, 55 Mo. 292; In re Whitman's Estate, 89 Mo. 58; Meyers v. Insurance Co., 92 Mo. App. 392; State ex rel. v. Mosman, 112 Mo. App. 540; Harper v. Baker, 9 Mo. 74. (4) Plaintiff has no right or remedy by appeal or writ......
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