State ex rel. Bartlett v. McQueen
| Decision Date | 12 March 1951 |
| Docket Number | No. 42298,42298 |
| Citation | 361 Mo. 1029,238 S.W.2d 393 |
| Parties | STATE ex rel. BARTLETT v. McQUEEN, Judge. |
| Court | Missouri Supreme Court |
Henry M. Shughart, Harry P. Thomson, Jr., and Shughart & Thomson, all of Kansas City, for relator.
Stanley Garrity, W. H. Sanders, and Caldwell, Downing, Noble & Garrity, all of Kansas City, for respondent.
This is an original proceeding in prohibition to prevent respondent, a circuit judge in Jackson county, from assuming jurisdiction over the person of relator in an action pending before him in the circuit court of said county. The question of jurisdiction turns upon the construction of the venue statute, Sec. 508.010, R.S.1949, Sec. 871, Mo.R.S.A. The facts are not in dispute.
On July 3, 1949, Roscoe M. Laurie instituted an action for damages for personal injuries in the circuit court of Jackson county (case No. 529.605) against Mary Jane Bartlett and Merle Bartlett. The injuries were alleged to have been sustained in an automobile-motorcycle collision in Clay county as a result of the negligence of Mary Jane Bartlett, while she was operating the automobile as the agent and servant of defendant Merle Bartlett. Plaintiff Laurie was then a resident of Jackson county and the defendants Bartlett, husband and wife, were residents of Platte county. Process was duly issued and served on defendant Merle Bartlett in Jackson county, he being found therein, but the sheriff made a non est return as to Mary Jane Bartlett. An alias summons was, thereafter, issued and served upon Mary Jane Bartlett in Platte county. Defendant Merle Barlett appeared in the circuit court of Jackson county and filed his separate answer to the merits of said cause, but his co-defendant, Mary Jane Bartlett (relator herein), appearing specially for the purposes of her motion, moved to quash the summons, service and return on the ground that there was no proper venue in the circuit court of Jackson county as to her; and that the issuance of process and service thereof in Platte county was insufficient to confer jurisdiction over her person. She relied upon what is now Sec. 508.010, supra, to show want of proper venue and jurisdiction over her person. The motion to quash was overruled. She thereupon filed in this court her petition for a writ of prohibition and our preliminary rule in prohibition was duly issued.
Respondent's return admits that he claims authority to proceed to hear and determine the issues involved in the pending cause against relator. Respondent's position is that the action having been filed against two defendants in the county of plaintiff's residence and one of defendants being found in said county, and having been properly served with process therein, venue became fixed and established under Sec. 508.010, supra, in the circuit court of Jackson county; and that summons could, thereafter, be issued for service upon any other defendant in any county in the state and jurisdiction could properly be obtained over the person of such defendant or defendants. Sec. 506.170, R.S.1949, Sec. 847.29, Mo.R.S.A.
Relator's position is that 'the circuit court of Jackson county has neither venue nor jurisdiction in suit No. 529,605 (the pending suit) * * * because the relator was not found in Jackson county and neither of the defendants in said suit were residents of Jackson county * * * and the suit was * * * not brought in the county of residence of one of the defendants, all as required by Sec. 871, R.S.1939,' now Sec. 508.010, supra.
Section 508.010, R.S.1949, in part, provides: 'Suits instituted by summons shall, except as otherwise provided by law, be brought: (1) When the defendant is a resident of the state, either in the county within which the defendant resides, or in the county within which the plaintiff resides and the defendant may be found; (2) When there are several defendants, and they reside in different counties, the suit may be brought in any such county; * * *.'
Respondent argues that, since the court acquired jurisdiction to determine the cause of action between plaintiff and one defendant (the one found in the county of plaintiff's residence), the venue of the action for all purposes and as against all parties-defendants was finally established; and that process could then be issued and served in any county in the state and the court would acquire jurisdiction of the person of such defendants so served. Respondent says that 'the true question is whether the Jackson county circuit court properly and lawfully acquired jurisdiction of the person--not venue--over relator who was served in another (Platte) county.'
Respondent is in error, the venue statute must be met and complied with as to each defendant. Proper venue is necessary, before the service of process will confer jurisdiction over the person of a defendant. Yates v. Casteel, 329 Mo. 1101, 49 S.W.2d 68, 70; Hankins v. Smarr, 345 Mo. 973, 137 S.W.2d 499, 501; State ex rel. Minihan v. Aronson, 350 Mo. 309, 165 S.W.2d 404, 407. The general venue statute, Sec. 508.010, supra, was not modified by Sec. 29 of the New Code of Civil Procedure, Laws 1943, p. 353, now Sec. 506.170, supra, with reference to the service of process. Carr Missouri Civil Procedure, Vol. 1, Sec. 121, p. 259. The provisions of the Code with reference to service of process are subject to statutory venue requirements. State ex rel. O'Keefe v. Brown, Mo.Sup., 235 S.W.2d 304, not yet published in the State Reports; Carr Missouri Civil Procedure, Vol. 1, Sec. 139, p. 309.
The action in question (case No. 529,605) was not instituted in a county wherein any or all of the defendants resided. It was instituted in the county where the plaintiff resided and wherein only defendant Merle Bartlett was found. Relator was not found therein, nor was she served with process in the county of plaintiff's residence.
The mere fact that proper venue, as to one defendant, exists by reason of the fact that he was found and served with process in the county of plaintiff's residence, where the suit was instituted, does not authorize the issuance and service of process on the other defendant in the county of his domicile, unless the venue of the action is proper as to such defendant. Venue, as to such defendant, is not dependent under the statute upon the mere fact that a co-...
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