Salisbury v. Salisbury

• Decision Date: 09 April 1918
• Citation: 202 S.W. 529,274 Mo. 180
• Parties: CAROLINA SALISBURY, Appellant, v. FRANCIS O. SALISBURY, MARY E. DUGGAN and G. W. GIBBS, Sheriff of Dent County
• Court: Missouri Supreme Court

202 S.W. 529

274 Mo. 180

CAROLINA SALISBURY, Appellant, v. FRANCIS O. SALISBURY, MARY E. DUGGAN and G. W. GIBBS, Sheriff of Dent County

Supreme Court of Missouri, Second Division

April 9, 1918

Appeal from St. Louis City Circuit Court. -- Hon. Kent K. Koerner Judge.

Affirmed.

John J O'Connor for appellant.

(1) The statute provides that where two or more defendants are sued jointly and one of said defendants and the plaintiff reside in the county where the suit is filed, personal service of summons with copy of petition in said suit, on the resident defendant, will entitle the plaintiff to have copies of the summons sent to the sheriff or other proper officer of each of the different counties wherein the non-resident defendants reside, and services of said copies on such defendant's by such sheriffs will bring such non-resident defendants into court and subject their persons to the jurisdiction of the court as effectually as if the summons were served on them in the county where the suit was pending. Sec. 1751, R. S. 1909; Davison v. Hough, 165 Mo. 572. (2) It will not be said that Francis O. Salisbury was not a material party to this suit. The judgment, the collection of which is sought to be enjoined, is against him, and moreover, if he was an improper party, the defect should have been reached by demurrer. This not being done the defect, if any, was waived. Defendant Duggan in her separate answer alleges that he is the owner of said land. (3) Where two or more grounds are alleged in a petition, and either if true would give the plaintiff a cause of action, or the court jurisdiction, as in this case, the fact that the plaintiff in such case fails to prove one ground will not deprive such plaintiff of the ground that is proven. State to use v. McDougal, 16 Mo.App. 414. (4) If the court has jurisdiction of the subject-matter, the appearance of the defendants by answer to the merits, waives all objections to the service of summons and jurisdiction of the court over the persons of the defendants so answering. Hembree v. Campbell, 8 Mo 572; Brown v. Woody, 64 Mo. 547; Shuler v. Am. Benev. Assn., 132 Mo.App. 123; Thomasson v. Ins. Co., 217 Mo. 485; Julian v. Kansas City Star, 209 Mo. 35; Allen v. Welch, 125 Mo.App. 278; Sperry v. Hurd, 267 Mo. 639; Ewing v. Vernon County, 216 Mo. 681; Schroeder v. Edwards, 267 Mo. 482; Mathias v. Arnold, 191 Mo.App. 352.

W. P. Elmer for respondent.

(1) The question of jurisdiction over the person may be raised by answer if it does not appear on the face of the petition. Bonert v. Hotel Co., 130 Mo.App. 636; Byler v. Jones, 79 Mo. 261. It is only when the plaintiff pleads to the merits without raising the question of jurisdiction that it is waived. Julian v. K. C. Star, 98 U.S. 476; Little v. Herrington, 71 Mo. 391. (2) Several defendants may be joined, though they reside in different counties, but all the parties so joined must be jointly interested or act together in the nature of a conspiracy before jurisdiction can be obtained over any defendant not residing or served in the county where the plaintiff resides. The court has no jurisdiction over the defendants. Sec. 1751, R. S. 1909; State ex rel. v. Bradley, 193 Mo. 33; Little v. Herrington, 71 Mo. 391; Comm. Co. v. Black, 130 Mo. 668. (3) Division No. 6 had no jurisdiction to issue an injunction to restrain the execution of proceedings from Division No. 5 of the circuit court of St. Louis City, for the reason that one court cannot enjoin or stay the proceedings of another court where they are of equal jurisdiction and authority. Scrutchfield v. Sauter, 119 Mo. 615; Sec. 2516, R. S. 1909; Bank v. Poole, 160 Mo.App. 133; Farris v. Smithpeter, 166 S.W. 656; Norman v. Eastman, 230 Mo. 168. Sec. 2244, R. S. 1909, points out the way of quashing executions, and this procedure is exclusive. Strangers might proceed under it the same as parties. Bank v. Poole, 141 S.W. 732. If there is no defect in the judgment, execution or levy, it should not be quashed. Cope v. Snyder, 99 Mo.App. 496. (4) An action to remove a cloud or prevent a cloud from being cast on title, affects the title to real estate and must be brought in the county where the real estate is located. Sec. 1753, R. S. 1909; Davidson v. Huff, 165 Mo. 572.

ROY, C. White, C., concurs.

OPINION

ROY, C.

This is a suit to enjoin the sale of land under execution. The bill was dismissed and plaintiff has appealed.

Plaintiff and Francis O. Salisbury, one of the defendants, are husband and wife, and are residents of St. Louis. The other two defendants are residents of Dent County, of which said Gibbs is sheriff. Plaintiff furnished her husband with money to buy for her some Dent County land. He did so, but fraudulently took the title in his own name. He got in debt to defendant Duggan, and she recovered judgment for it against him in the circuit court of the city of St. Louis in April, 1914. Execution was issued on that judgment, directed to defendant Gibbs as sheriff of Dent County, and was levied on the land. Plaintiff then sued her husband in Dent County to divest him of title to the land and to vest it in herself. The husband entered his voluntary appearance therein, but filed no answer. The decree was in accordance with the petition.

Thereupon, plaintiff brought this suit in the circuit court of St. Louis to enjoin the sale of the land under that execution. The petition charges that defendants Duggan and Francis O. Salisbury are acting together in the attempt to sell said land under said execution.

The answer of defendant Duggan contained the following:

"First Questions the jurisdiction of the court over the person of Mary E. Duggan in this cause for the reason that she, the said Mary E. Duggan, is a resident of Dent County, Missouri, and was a resident of said county at the date of the filing of plaintiff's bill, and that the plaintiff is a resident of the city of St. Louis, Missouri, and that G. W. Gibbs, the sheriff of Dent County, Missouri, is a resident of Dent County, and that the plaintiff fraudulently and unlawfully joined her husband, Francis O. Salisbury, as a party defendant in this action for the sole and only purpose of seeking to acquire jurisdiction over the person of this defendant, Mary E. Duggan, and her co-defendant, G. W. Gibbs, sheriff of Dent County; and that there is no joint interest or liability, existing between the said defendants, Francis O. Salisbury and Mary E. Duggan, and the said G. W. Gibbs, sheriff of Dent County, and this court is without jurisdiction to hear and determine this case as an independent action of injunction.

"Further answering, the defendant Mary E. Duggan, avers that this court has no jurisdiction over the subject-matter of this...