State ex rel. Atkinson Paving Co. v. Aronson, 36798.

• Decision Date: 21 February 1940
• Docket Number: No. 36798.,36798.
• Citation: 138 S.W.2d 1
• Parties: STATE OF MISSOURI at the relation of C.H. ATKINSON PAVING COMPANY, a Corporation, Relator, v. ROBERT L. ARONSON, Judge of the Circuit Court of St. Louis, Presiding in Division One thereof.
• Court: Missouri Supreme Court

138 S.W.2d 1 STATE OF MISSOURI at the relation of C.H. ATKINSON PAVING COMPANY, a Corporation, Relator,
v.
ROBERT L. ARONSON, Judge of the Circuit Court of St. Louis, Presiding in Division One thereof. No. 36798. Supreme Court of Missouri. Division Two, February 21, 1940.

Prohibition.

PROVISIONAL RULE IN PROHIBITION MADE ABSOLUTE.

Richmond C. Coburn, Randall R. Kitt and Paul D. Kitt for relator.

(1) The respondent's demurrer to the petition admitting all facts well pleaded therein, the issues herein become issues of law; and if the facts in the petition show relator's right to the writ, the permanent writ should be granted. State ex rel. Henson v. Sheppard, 192 Mo. 497, 91 S.W. 477; State ex rel. Powers v. Rassieur, 184 S.W. 116; State ex rel. American Cent. Life Ins. Co. v. Landwehr, 318 Mo. 181, 300 S.W. 294; State ex rel. Compagnie Generale Trans-atlantique v. Falkenhainer, 309 Mo. 224, 274 S.W. 758; State ex rel. Harris v. Galloway, 21 S.W. (2d) 228. (2) The jurisdiction of the Circuit Court of the City of St. Louis, Missouri, over the person of relator, in the case in that court is governed and determined by Section 720, Revised Statutes of Missouri, 1929 (Sec. 1177, R.S. 1919), and not by Section 723, Revised Statutes of Missouri, 1929 (Sec. 1180, R.S. 1919), since plaintiff's in the suit in that court, have joined relator as a defendant with the city of St. Louis and others. State ex rel. Columbia Natl. Bank of Kansas City v. Davis, 284 S.W. 464, 314 Mo. 373; State ex rel. Henning v. Williams, 131 S.W. (2d) 561. (a) The residence of the relator, a defendant in the suit below, within the meaning of Section 720, Revised Statutes 1929, is in Livingston County, Missouri. State ex rel. Henning v. Williams, 131 S.W. (2d) 561. (3) In order for the Circuit Court of the City of St. Louis to acquire jurisdiction of the person of relator, a defendant in the case in that court, a non-resident of the city of St. Louis and a resident of Livingston County, Missouri, and served with summons in that case in Livingston County, Missouri, there must be a joint liability against the city of St. Louis, the resident defendant, and against the relator; and the petition in the suit instituted in the Circuit Court of the City of St. Louis must state a joint liability against the city of St. Louis and this relator. State ex rel. Dutcher v. Shelton, 249 Mo. 660, 156 S.W. 955; Hockaday v. Gilham, 206 Mo. App. 132, 226 S.W. 991; Mertens v. McMahon, 334 Mo. 175, 66 S.W. (2d) 127; Haseltine v. Messmore, 184 Mo. 298, 82 S.W. 115; Graham v. Ringo, 67 Mo. 324; State ex rel. Jackson v. Bradley, 193 Mo. 33, 91 S.W. 483. (4) The damages sought to be recovered are recoverable either solely from the city of St. Louis or solely from those who actually did the work in changing the grade of the street; solely from the city of St. Louis if the grade was changed pursuant to a valid ordinance passed by the legislative body of the city of St. Louis, or solely from the contractor or others who did the work if there was no valid ordinance. McGrew v. Granite Bituminous Paving Co., 247 Mo. 549, 155 S.W. 411; Stewart v. Clinton, 79 Mo. 603; Bigelow v. Springfield, 178 Mo. App. 463, 162 S.W. 750; Ketchum v. Monett, 193 Mo. App. 529, 181 S.W. 1064; Maudlin v. Trenton, 67 Mo. App. 452; McQuarter v. St. Joseph, 134 Mo. App. 640, 114 S.W. 1140; Koeppen v. Sedalia, 89 Mo. App. 648; Gehling v. St. Joseph, 49 Mo. App. 430; Beatty v. St. Joseph, 57 Mo. App. 251; Gardner v. St. Joseph, 96 Mo. App. 657, 71 S.W. 63; Werth v. Springfield, 22 Mo. App. 12; Werth v. Springfield, 78 Mo. 107.

Francis R. Stout for respondent.

(1) If a joint cause of action is not stated against relator and the codefendants, then the relator is properly in the Circuit Court of the City of St. Louis, as the cause of action accrued in the city of St. Louis. R.S. 1929, sec. 723. (2) If a joint cause of action is stated against the relator and the codefendants, then the relator is properly in the Circuit Court of the City of St. Louis, as the residence of the codefendant, the city of St. Louis, is in the city of St. Louis. R.S. 1929, sec. 720; State ex rel. Hennings v. Williams, 131 S.W. (2d) 561; State ex rel. Columbia Natl. Bank etc. v. Davis, 284 S.W. 464, 314 Mo. 373. (3) The city of St. Louis, being a municipal corporation, can only be sued in the Circuit Court of the City of St. Louis. Laws 1937, p. 203.

BOHLING, C.

Prohibition. C.H. Atkinson Paving Company, a foreign corporation, relator here, having its only place of business in Missouri in Livingston County and there served with process, questions the jurisdiction

138 S.W.2d 2

of the Circuit Court of the City of St. Louis over its person in a cause therein pending entitled Eugene Schmidt et al. v. The City of St. Louis, a municipal corporation, C.H. Atkinson Paving Company et al. In said action plaintiffs seek $60,000 damages alleged to have been occasioned their real estate by reason of a change in the grade of an abutting street. Relator, appearing specially, filed a plea to the jurisdiction of said circuit court over its person. Said plea was overruled. This proceeding followed. The named respondent succeeded the judge in the division of said court making the ruling complained of. Only issues of law are presented.

[1] Plaintiffs' allegation that relator is a foreign corporation, organized etc., under the laws of South Dakota and licensed to do business in the State of Missouri "with its only office or place of business in Missouri at Chillicothe, Livingston County, Missouri ..." establishes relator's residence in Livingston County for the ordinary purposes of venue and service in this State. [State ex rel. Henning v. Williams (Banc), 345 Mo. 22, 131 S.W. (2d) 561, 564[6], 565[9].]

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