National Masonic Acc. Ass'n v. Sparks, 859.

• Decision Date: 06 October 1897
• Docket Number: 859.
• Citation: 83 F. 225
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: NATIONAL MASONIC ACC. ASS'N OF DES MOINES v. SPARKS.

83 F. 225

NATIONAL MASONIC ACC. ASS'N OF DES MOINES v. SPARKS.

No. 859.

United States Court of Appeals, Eighth Circuit.

October 6, 1897

Clark Varnum, for plaintiff in error.

Carroll Wright, for defendant in error.

Before SANBORN and THAYER, Circuit Judges, and RINER, District Judge.

RINER District Judge.

This was an action at law brought by Nannie R. Sparks, the defendant in error, against the National Masonic Accident Association of Des Moines, Iowa, the plaintiff in error, in the circuit court of the United States for the Southern district of Iowa, to recover the sum of $5,250, with interest and costs, upon a judgment obtained by her against the association in the circuit court sitting within and for the county of Johnson, in the state of Missouri. The petition filed in the circuit court for the Southern district of Iowa averred, in substance, that the plaintiff was a citizen of the state of Missouri; that the defendant was a citizen of the state of Iowa; that the amount involved in controversy exceeded the sum of $2,000, exclusive of interest and costs that on the 25th of November, 1893, she recovered a judgment against the defendant in the circuit court within and for the Seventeenth judicial district of the state of Missouri, held in the county of Johnson, in said state, in the sum of $5,225, with costs and interest from that date; that the court rendering such judgment was a court of general jurisdiction, and a court of record, and that she was the owner and holder of the judgment at the time this action was brought. To this petition the defendant answered:

(1) Admitting that it was a corporation organized under the laws of the state of Iowa; (2) denying each and every other allegation of the petition; (3) as a separate defense, that the defendant never appeared in any suit or proceeding brought against it by the plaintiff in the circuit court of Johnson county, Mo., and denied that it was ever summoned to appear, or was served with process to appear, in such action (4) for a further and separate defense, 'that it is a corporation organized under the laws of the state of Iowa with its office and place of business at the city of Des Moines, in said state of Iowa, and that it never has had an office in the state of Missouri, nor kept or maintained any agents or officers in said state; that neither the superintendent of the insurance department of the state of Missouri, nor any other person within said state has ever been appointed by the defendant as a person upon whom service of process might be served upon the defendant within said state of Missouri; that the defendant has never made application to the insurance department of the state of Missouri to be admitted to said state to do business; that said defendant has never been served with process by any of its officers, or agents, or any person upon whom service of process could be lawfully made, or who was appointed thereunto, within the said state of Missouri, and that any judgment, if any was obtained by the alleged plaintiff in the said alleged suit or proceeding alleged to have been had in the circuit court of Johnson county, Missouri, was rendered without service of process upon the defendant, or upon any person or persons authorized or empowered to accept such service of process, or have such service of process made upon him or them, for the defendant;' (5) for another defense, 'that it never entered any voluntary appearance in the alleged suit or proceeding claimed to have been had in the circuit court of Johnson county, Missouri; that no person that was authorized or empowered to accept service of process for it (the defendant), or to have service of process made upon him or them for the defendant, was ever personally cited to appear in said cause, or personally served with any summons or process in said cause, nor did any such person ever appear for the defendant in said cause or proceeding;' (6) for another defense, 'that any alleged judgment pretended to be rendered by the circuit court of Johnson county, in the state of Missouri, against this defendant, in favor of the plaintiff, was obtained through the fraud of the plaintiff, in this: that the said plaintiff, well knowing that each and every of the matters hereinbefore pleaded in this answer were true, and the same being true, and being hereby reaffirmed and reaverred as though pleaded at length herein, said plaintiff did, with the express purpose of preventing the defendant from presenting a defense to such alleged suit, fail, neglect, and refuse to serve or cause to be served upon it (the defendant) any process or summons or citation whatever in the said alleged suit, and fraudulently, and with the intent to defraud this defendant, caused service of a writ of process to be made upon the superintendent of insurance of the state of Missouri, and after having caused and procured such service to be made, and thus preventing the defendant and its agents and officers from having due and legal notice of the commencement of such suit, the plaintiff then and there caused and procured the court pretending to render such judgment to fraudulently and untruthfully recite in the said judgment the false and untrue statement that the defendant was doing an accident life insurance business in the state of Missouri, and the further false and untrue statement that personal service was had upon the defendant in the state of Missouri, and the further false and untrue statement that the superintendent of the insurance department of the state of Missouri was authorized to receive such service of process, all of which acts and things were done by the plaintiff for the express purpose of causing and procuring an apparently valid judgment entry to be made by the said court of Johnson county, Missouri, when in truth and in fact the said court so making such judgment entry was wholly without jurisdiction over said cause, and wholly without jurisdiction over the defendant, and wholly without jurisdiction to render said judgment or make such alleged entry of judgment, and which want of jurisdiction was known to the plaintiff at the time of the causing and procuring such court to make such entry.'

By stipulation in writing, signed by the parties and filed in the circuit court, a jury was waived, and the case was tried by the court. The trial resulted in a judgment in favor of the plaintiff for the sum of $6,081.90. The defendant thereupon sued out this writ of error.

In the brief filed on behalf of the plaintiff in error, it was insisted that, as this was an ordinary civil action, the jurisdiction of the circuit court depended entirely upon the fact that the plaintiff was a citizen of Missouri and the defendant a citizen of Iowa, and that the burden was on the plaintiff to establish that fact by proof. It is the well-settled rule in the federal courts that where the plaintiff's petition, as in this case, sets out the necessary diverse citizenship of the parties, the burden of both allegation and proof rests upon the party...