State ex rel. Boll v. Weinstein, s. 45253

• Decision Date: 12 November 1956
• Docket Number: Nos. 45253,45258,s. 45253
• Parties: STATE of Missouri at the relation of Robert BOLL, Relator, v. Noah WEINSTEIN, Judge of the Circuit Court of St. Louis County, Missouri, Respondent. STATE of Missouri at the relation of Robert BOLL, Relator, v. Edward T. EVERSOLE, Judge of the Circuit Court of Jefferson County, Missouri, Respondent.
• Court: Missouri Supreme Court

Page 62

295 S.W.2d 62

365 Mo. 1179

STATE of Missouri at the relation of Robert BOLL, Relator, v. Noah WEINSTEIN, Judge of the Circuit Court of St. Louis

County, Missouri, Respondent.

STATE of Missouri at the relation of Robert BOLL, Relator, v. Edward T. EVERSOLE, Judge of the Circuit Court of Jefferson

County, Missouri, Respondent.

Nos. 45253, 45258.

Supreme Court of Missouri, En Banc.

Nov. 12, 1956.

James F. Koester, St. Louis, for relator.

Dearing & Richeson, Samuel Richeson, Hillsboro, for respondents.

EAGER, Judge.

Each of these consolidated cases is an original proceeding in this court. The first is in prohibition and the second in mandamus; they arise out of the same facts. These facts are shown by the respective petitions and returns and the attached exhibits. The relator in each case has filed a motion for judgment on the pleadings. The question, therefore, is one of law.

Robert Boll filed suit in St. Louis County against Springlake Park, Inc., for damages for personal injuries. That defendant is a Missouri corporation having its principal office in Jefferson County, Missouri; it has no office or place of business in St. Louis County. The Sheriff of St. Louis County made return of an alias summons, showing that he had served one A. J. Koller, President of the defendant corporation, in St. Louis County. After the lapse of 30 days plaintiff's counsel had a default entered and had the cause set for trial; however, before the trial date was reached, defendant, appearing only for the purpose of the motion, filed its motion to quash the return and service, and to dismiss the action because of improper venue and lack of jurisdiction over the person of defendant; it was stated in that motion that the cause of action did not accrue in St. Louis County and that defendant did not have or keep an office or agent in St. Louis County for the transaction of its usual and customary business. At the hearing of this motion it was admitted, in substance, that these facts were true, and that the cause of action accrued in Jefferson County. The plaintiff there contended, as relator does here, that any objection to improper venue had been waived by the failure to file such a motion within 30 days after service, under Sec. 509.340, all statutory references herein are to RSMo 1949, V.A.M.S. That section provides that a party waives all objections then available to him by motion by failure to assert them by motion within the time limited by Sec. 509.330, with certain exceptions not material here. The circuit court entered an order overruling the motion 'to the extent that it attacks the return of service on defendant,' and sustaining it 'to the extent that it attacks the venue of this court.' And thereupon the court ordered the cause 'transferred' to the Circuit Court of Jefferson County. Thereafter copies of the various pleadings, orders and other papers were duly certified and sent to the Circuit Clerk of Jefferson County, and they were filed there on October 6, 1955. At the time of the entry of the above order the court filed memorandum, stating that the service on the President of defendant was in accordance with Sec. 506.150(3), but that the venue was improper under Sec. 508.040; the court further said that it would be 'presumed that the court impliedly granted defendant leave to file its motion out of time for good cause' under Sec. 506.060(2), which provides that the court may permit an act to be done out of time where the failure was the result of excusable neglect. No further proceedings were had in St. Louis County and no action has been taken in the Jefferson County Circuit Court, except to file the papers. The petition for prohibition, filed here on October 19, 1955, sought to prohibit Judge Weinstein from sending the case to Jefferson County 'in order that it may be docketed and tried' in St. Louis County; upon finding that the 'removal' had already been effected, relator then filed here, on October 25, 1955, his petition for mandamus asking this court to instruct Judge Eversole, of the Circuit Court of Jefferson County, to order the return of the cause to St. Louis County for trial.

Relator insists here that the question is solely one of venue, and that the defendant in the cause waived any defect in venue by failing to raise it by motion within 30 days after service of summons; also that the service was sufficient under Sec. 506.150(3). Counsel for respondents assert that the venue was improper, and that this was not waived, but that the Circuit Court of St. Louis County had 'inherent power' to transfer the case.

It seems entirely clear that the venue here was improper. Section 508.040 is the applicable venue statute when a corporation is the sole defendant. State ex rel. C. H. Atkinson Paving Co. v. Aronson, 345 Mo. 937, 138 S.W.2d 1; State ex rel. Henning v. Williams, Banc, 345 Mo. 22, 131 S.W.2d 561; State ex rel. and to Use of Clay County State Bank v. Waltner, 346 Mo. 1138, 145 S.W.2d 152. It provides that suits against corporations shall be instituted either in the county where the cause of action accrued, or in any county where such corporations 'shall have or usually keep an office or agent for the transaction of their usual and customary business.' It is admitted here, as stated, that the cause of action accrued in Jefferson County, and that defendant has no office or place of business in St. Louis County. We may presume from this record that defendant does not keep an agent in St. Louis County for the transaction of its usual business, for the facts indicate the contrary, and the return does not so state; a return of service may not be aided by presumptions or intendments, and it must show on its face that every requisite of the statute has been complied with. Carter v. Flynn, 232 Mo.App. 771, 112 S.W.2d 364, 369; Stanley v. Sedalia Transit Co., 136 Mo.App. 388, 117 S.W. 685. The return here merely stated that the sheriff served the summons on defendant by delivering a copy of the summons and petition 'to A. J. Koller, pres. of the said defendant corporation.'

The issue here is something more than a mere question of venue. We hold that, the venue being improper, the court acquired no jurisdiction over the person of the defendant by the purported service on its president in St. Louis County. The service statutes and the venue statutes are necessarily construed together. State ex rel. Minihan v. Aronson, 350 Mo. 309, 165 S.W.2d 404; State ex rel. Henning v. Williams, Banc, 345 Mo. 22, 131 S.W.2d 561; Hankins v. Smarr, 345 Mo. 973, 137 S.W.2d 499. In State ex rel. Bartlett v. McQueen, Banc, 361 Mo. 1029, 238 S.W.2d 393, the proceeding was one in prohibition, and a lack of jurisdiction over one defendant in a pending suit was asserted; plaintiff lived in Jackson County and both defendants lived in Platte County. One defendant was served in Jackson County when found there, but the other defendant was served in Platte County. The court held that the venue was improper as to the defendant who was not found in Jackson County, and said, 238 S.W.2d loc. cit. 395: '* * * 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 provisions of the Code with reference to service of process are subject to statutory venue requirements.' As considering, also, such a question as one of jurisdiction, see: State ex rel. St. Joseph Lead Co. v. Jones, Banc, 270 Mo. 230, 192 S.W. 980; Hankins v. Smarr, 345 Mo. 973, 137 S.W.2d 499; Robinson v. Field, 342 Mo. 778, 117 S.w.2d 308; Lieffring v. Birt, Mo.App., 154 S.W.2d 597; Mahan v. Baile, 358 Mo. 625, 216 S.W.2d 92. We have read the cases cited by relator and find nothing to the contrary. Holding, therefore, that the question is one of jurisdiction, we consider the supposed waiver.

We need not decide whether there may ever be a waiver of improper venue by a failure to raise the objection by motion in accordance with Sec. 509.340. We do think, however, and so hold, that in order to waive an existing want of jurisdiction over the person of the defendant, there must be some overt act constituting a general appearance, by virtue of which the defendant submits himself or itself to the jurisdiction of the court; Mahan v. Baile, 358 Mo. 625, 216 S.W.2d 92. Various instances of such appearances are cited in that opinion; and see, for further examples: Lieffring v. Birt, Mo.App., 154 S.W.2d 597; Robinson v. Field, 342 Mo. 778, 117 S.W.2d 308. In the Lieffring case, supra , the court referred to the requirement of a 'voluntary act such as would constitute a general entry of appearance.' In the present case the defendant filed only its motion raising the lack of jurisdiction over it, and attacking the venue; that motion was filed upon a special appearance,...