State ex rel. C. H. Atkinson Paving Co. v. Aronson

• Decision Date: 21 February 1940
• Docket Number: 36798
• Citation: 138 S.W.2d 1,345 Mo. 937
• 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

345 Mo. 937

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

February 21, 1940

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. Cooley and Westhues, CC., concur.

OPINION

BOHLING

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 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.

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].]

The litigants submit for our consideration the following statutory provisions only:

"Suits instituted by summons shall, except as otherwise provided by law, be brought: . . . second, when there are several defendants, and they reside in different counties, the suit may be brought in any such county. . . ." [Sec. 720, R. S. 1929, Mo. Stat. Ann., p. 929.]

"Suits against corporations shall be commenced either in the county where the cause of action accrued, or . . . ." [Sec. 723, R. S. 1929, Mo. Stat. Ann., p. 936.]

Respondent also mentions Laws 1937, page 203 (providing that municipalities are to be sued in the county of their residence) but does not point out wherein it is, and we think it is not, of importance under the instant facts.

The main controversy, as submitted, wages around whether plaintiffs' petition states a cause of action based upon a joint liability of the City and relator to plaintiffs; although counsel for respondent contends that the Circuit Court of the City of St. Louis acquired jurisdiction over the person of relator because (1st) if no joint liability is stated, the cause of action accrued in the city of St. Louis (citing Sec. 723, supra); or (2d) if a joint liability is stated, the suit was properly brought in the county (the city of St. Louis being a county for governmental purposes -- Mo. Const., Art. 9, Sec. 23) of relator's codefendant's residence (citing Sec. 720, supra; the Davis and Williams cases, infra.)

1st. In construing the quoted provisions and holding that an action is maintainable against a corporation under said provision of Sec. 720 in the county of a corporation's codefendant's residence, although the cause of action did not accrue there and the corporation was not a resident of said county, State ex rel. Columbia National Bank v. Davis (Banc), 314 Mo. 373, 389, 390, 284 S.W. 464, 470[10, 11], states: "By construing section 1180 [now Sec. 723] to apply only where a corporation is made sole defendant in a suit, no violence is done to subdivision 2 of section 1177 [now Sec. 720, quoted supra], and the two sections, as thus construed, constitute parts of a harmonious and workable scheme of venue in civil cases. To construe section 1180 otherwise is to convict the Legislature of enacting a scheme of venue in civil cases which does not cover all possible situations. . . . Our conclusion, therefore, is that the second subdivision of section 1177, Revised Statutes 1919, fixes the venue of civil actions against corporations where they are joined as defendants with one or more other defendants, and that section 1180 fixes such venue only in actions where the corporation defendant is the sole defendant." Approved in State ex rel. Henning v. Williams (Banc), 345 Mo. 22, 131 S.W.2d 561, 562, 563[3, 4].

Said authorities sustain relator's contention that the quoted clause of Sec. 723 applies only in instances wherein a corporation is the sole defendant. Furthermore, as pointed out infra plaintiffs' petition states no cause of action against relator.

2d. Plaintiffs' petition alleges "that the defendants have changed and caused to be changed the grade of Ivory Avenue from its former established and existing grade ." Also, "that said change of grade was made under the direction and control of defendants . . .;" and that plaintiffs' property has been damaged as a direct result thereof. Respondent does not undertake to establish the statement in plaintiffs' petition of a cause of action founded upon the joint liability of defendants but says: "If, in this particular case, the city should claim there was no change of grade ordinance, and the defendant Atkinson Paving Company contend there was a change of grade ordinance, the plaintiff should not be put in a position of having to decide the outcome of this issue before the verdict of the jury decides it." Thus respondent admits the liability of the one or the other of the named defendants turns on the factual issue of ordinance or no ordinance. Further, relator's statement that ...