State ex rel. Compagnie Generale Transatlantique v. Falkenhainer

• Citation: 274 S.W. 758,309 Mo. 224
• Decision Date: 01 July 1925
• Docket Number: 25753
• Parties: THE STATE ex rel. COMPAGNIE GENERALE TRANSATLANTIQUE v. VICTOR H. FALKENHAINER et al., Judges of Circuit Court
• Court: Missouri Supreme Court

274 S.W. 758

309 Mo. 224

THE STATE ex rel. COMPAGNIE GENERALE TRANSATLANTIQUE v. VICTOR H. FALKENHAINER et al., Judges of Circuit Court

No. 25753

Supreme Court of Missouri

July 1, 1925

Preliminary rule discharged.

William C. Robinson for plaintiff.

(1) Prohibition is the appropriate remedy to restrain respondents from the exercise of jurisdiction which they do not possess. State ex rel. Bowling v. Barnett, 245 Mo. 99; State ex rel. Hunt v. Grimm, 234 Mo. 667. (2) The exercise of jurisdiction over the relator by the respondents would deprive the relator of its property without due process of law. Pennoyer v. Neff, 95 U.S. 714; Riverside Mills v. Menefee, 237 U.S. 193; Baker v. Baker, 242 U.S. 403. (3) If, before a case is at issue or service of summons is made on the defendant, the plaintiff serves notice on the defendant of the taking of a deposition and the defendant appears at the taking of such deposition, such appearance is not a voluntary appearance and is not a general appearance in the case. Bentz v. Eubanks, 4 P. 271. (4) Acts of a defendant sufficient to constitute a general appearance in a case must be such as to indicate an intention to enter such appearance. Roberts v. American, 207 Mo.App. 239; State v. Southern, 278 Mo. 610; Ferguson v. Ross, 5 Ark. 517; 3 Cyc. 509. (5) The appearance of a defendant at the taking of a deposition not on the merits of the action does not constitute a general appearance in the case. State ex rel. Shoemaker v Hall, 257 S.W. 1050. (6) The appearance of a New York attorney at the taking of depositions in New York could not effect the general appearance of the defendant in the Missouri court when such attorney was not admitted to practice in the Missouri court. State v. Muench, 230 Mo. 236; Bradley v. Welsh, 100 Mo. 258.

Leahy Saunders & Walther for respondents.

(1) If a litigant voluntarily appears in opposition to a matter affecting the merits of the cause, contests the same, objects to the introduction of testimony and cross-examines the witnesses therein, he thereby submits to the jurisdiction of the court over his person. Hays v. Laclede-Christy, 245 S.W. 196; Bankers Life Assn. v. Shelton, 84 Mo.App. 639; Bartschat v. Downey, 172 Mo.App. 636; State ex rel. v. Grimm, 239 Mo. 174; Mahr v Union Pac. Ry. Co., 140 F. 921; Merchants Heat & Light Co. v. J. B. Clow & Sons, 204 U.S. 286; Linton v. Heye, 69 Neb. 450; Ohio South. Ry. Co. v. Morey, 47 Ohio St. 207. (2) Waiver of insufficiency of service of process is effected by defendant's appearance at depositions and taking part without objection in the taking thereof. Silvey v. Silvey, 192 Mo.App. 184; Hill v. Barton, 194 Mo.App. 325; Morick v. Morick, 196 S.W. 1029; Davis v. Fleming, 253 S.W. 801; Bankers Life Ins. Co. v. Robbins, 59 Neb. 170; Fitzgerald Co. v. Fitzgerald, 137 U.S. 98; 3 Cyc. 511, 528. (3) Where a party waives service of a notice to take depositions in a case, that constitutes an entry of general appearance. State ex rel. Shoemaker v. Hall, 257 S.W. 1052. This case cites: Berry v. Union Trust Co., 75 Mo. 432; Bates v. Scott, 26 Mo.App. 430; Pattison v. Ry. Co., 93 Mo.App. 646.

OPINION

Graves, C. J.

Original proceeding in prohibition. Preliminary rule was duly issued, and the pleadings thereafter made up. This proceeding grows out of the suit of Wm. J. Gundelach v. Compagnie Generale Transatlantique, a corporation under the laws of the Republic of France. Plaintiff Gundelach is a resident of the city of St. Louis, Missouri, and the defendant in such suit was engaged in running ships upon the high seas from ports in the Republic of France to and from ports in the United States. In November, 1921, plaintiff in the action out of which this action grows, was a passenger upon a steamship called "City of Chicago" then being operated by defendant. As indicated, plaintiff brought suit in the Circuit Court of the City of St. Louis, against the defendant. The action is one for personal injuries, alleged to have been received while a passenger upon said steamship, through the negligence of defendant. The particulars of that case are not necessary here. It suffices to say that the action was for $ 10,000 damages alleged to have been occasioned by the negligence of defendant. The suit was filed about November 16, 1922, and summons was issued upon that day by the clerk of the circuit court. Later the Sheriff of the City of St. Louis made the following return:

"Sheriff's return.

"After due and diligent search the within named defendant, Compagnie Generale Transatlantique, cannot be found in the city of St. Louis, Mo.

"Chas. G. Mohrstadt, Sheriff,

"R. H. Bloeser, Deputy."

No other summons was issued, nor was further attempt made to get service upon the defendant in the circuit court suit. Later, on the 18th day of August, 1923, there was a default judgment entered against defendant in Division No. 1, this being the assignment division of said court, which was made up of some sixteen divisions. Motion was made and filed to set aside this default judgment, but the appearance was special and not general, as specified in the motion. September 15, 1923, counsel for Gundelach filed motion to strike defendant's motion to set aside default judgment from the files. This motion reads:

"Comes now the plaintiff and moves the court to strike from the files the motion of defendant filed September 12, 1923, for the following reasons:

"1. The default granted herein was not predicated upon the return of the Sheriff of the City of St. Louis.

"2. The default granted herein was not predicated upon an acknowledgment of service of summons nor a waiver of service of summons by defendant.

"3. That at the time of the default granted herein this court had jurisdiction of the 'person' of the defendant.

"4. At the time of the default granted herein the defendant was and still is in default because this court had acquired jurisdiction and still retains jurisdiction over the 'person' of the defendant, and said defendant has filed no pleading.

"5. Because the defendant entered a general appearance through its counsel and by having its counsel appear at the taking of depositions, consenting to various continuances, producing witnesses and examining them upon the merits of the case at the taking of said depositions, the depositions being now on file in this cause, having been filed April 30, 1923, and offered in evidence at the time the said default was granted, and the said defendant, at said time, being and still being in default of pleading.

"Wherefore, plaintiff prays the court to strike the said motion of the defendant filed on September 12, 1923, from the files."

We quote this motion because it outlines the position of the respondents in the instant case. The return pleads that depositions were taken in the case on April 30, 1923, and sets out portions thereof, and then avers that the appearance of defendant at the taking of such depositions was an appearance in the action, and that after such appearance the defendant failed to answer the petition of plaintiff, and that by reason thereof the entry of a default judgment was proper. The reply to the return in the case now before us set out the depositions in full, and then avers that there was no entry of appearance by reason of the appearance of counsel at the taking of the depositions. A much discussed question is one that we do not find in the record of the Gundelach case in the circuit court, nor in the proceedings in this action. It is urged in the briefs that the jurisdiction of the subject-matter is in the Federal courts rather than in state courts. This sufficiently outlines the case, but leaving for the opinion the more specific facts in connection with the points urged.

I. The first point made by relator is that prohibition is the proper remedy. If the trial court was without jurisdiction there is no question as to the fact that prohibition is the remedy. Respondents do not question the remedy. In this case, however, the jurisdiction of the circuit court was dependent upon facts. There was no service of process, and the question of jurisdiction over the person of defendant was dependent upon the fact as to whether or not defendant, through counsel, had voluntarily appeared in the taking of depositions in the case, and thereby submitted itself to the jurisdiction of the court. There is nothing to the point that the appearance of counsel for defendant at the taking of depositions in New York was not voluntary. Even though notice and dedimus from the Missouri court had been duly issued for the taking of these depositions, and the witnesses were forced to attend the taking of the depositions, and to give testimony, yet the defendant did not have to appear, and if it did appear, such appearance must be deemed to have been voluntary. This because there was no power to compel such appearance. The mere fact that its officers were witnesses, did not make the appearance of the corporation involuntary. So whatever appearance, if any, upon the part of defendant corporation must be deemed voluntary.

II. Ordinarily where the jurisdiction of a court is dependent upon facts, then the finding of the court of its jurisdiction cannot be questioned in a collateral proceeding, and prohibition, such as we have here is a collateral proceeding. [State ex rel. v. Mills, 231 Mo. l. c. 499; Howey v. Howey, 240 S.W. 457; State ex rel. v. Shackelford, 263 Mo. l. c. 61-62, and cases cited infra, in this paragraph.]

But it is a further rule that where the facts as to jurisdiction are undisputed, or agreed upon, then the question of jurisdiction becomes a matter of law, and can be urged in a collateral proceeding. Here the facts upon which jurisdiction was assumed, are not only of the files in the...