State ex rel. Fielder v. Kirkwood, 36779.

• Decision Date: 02 April 1940
• Docket Number: No. 36779.,36779.
• Citation: 138 S.W.2d 1009
• Parties: STATE OF MISSOURI at the relation of DELA F. FIELDER, Relator, v. ROBERT J. KIRKWOOD and CHARLES B. WILLIAMS, Judges of the Circuit Court of the City of St. Louis, and Their Successors as Presiding Judge of said Court.
• Court: Missouri Supreme Court

138 S.W.2d 1009 STATE OF MISSOURI at the relation of DELA F. FIELDER, Relator,
v.
ROBERT J. KIRKWOOD and CHARLES B. WILLIAMS, Judges of the Circuit Court of the City of St. Louis, and Their Successors as Presiding Judge of said Court. No. 36779. Supreme Court of Missouri. Court en Banc, April 2, 1940.

[138 S.W.2d 1010]

Mandamus.

PEREMPTORY WRIT ORDERED.

Moser, Marsalek & Dearing for relator.

(1) This court has jurisdiction to correct respondents' erroneous order by mandamus. (a) The writ of mandamus is the proper remedy to correct respondents' error. Mo. Const., Art. VI, Sec. 3; State ex rel. Harris v. Laughlin, 75 Mo. 358; State ex rel. Realty Co. v. McElhinney, 246 Mo. 34, 151 S.W. 457; State ex rel. Union Electric v. Grimm, 220 Mo. 483, 119 S.W. 626; State ex rel. Case v. Seehorn, 283 Mo. 508, 223 S.W. 664; State ex rel. Pump Works v. Homer, 249 Mo. 58, 155 S.W. 405. (b) Relator has no other adequate remedy for the correction of respondents' erroneous ruling. State ex rel. Hyatt v. Smith, 105 Mo. 6, 16 S.W. 1052; Koeln v. Gould, 260 Mo. 499, 168 S.W. 1140; Russell v. St. L. & Sub. Ry. Co., 154 Mo. 428, 55 S.W. 454; Rock Island Imp. Co. v. Marr, 168 Mo. 252, 67 S.W. 586. (2) Relator stated a cause of action against all defendants in the circuit court, and has the right to sue all of the named defendants as joint tort-feasors in one action, wherever jurisdiction may be obtained on all. Doering v. St. Louis & O'Fallon Ry. Co., 63 S.W. (2d) 450; Sykes v. St. L.-S.F. Ry. Co., 178 Mo. 693, 77 S.W. 723. (3) The procedural steps undertaken to bring the defendant Belt Railway Company of Chicago before the Circuit Court of the City of St. Louis were technically correct, and all of the documents pertaining to the writ of attachment and garnishment, and the non-resident summons are in due and regular form as required by law. R.S. 1929, secs. 1296, 739, 748; First Natl. Bank v. Proffitt, 293 S.W. 524. (4) The debt owed to Belt Railway Company of Chicago by the garnishees, which were garnisheed and attached by relator, were properly subject to garnishment and attachment in the city of St. Louis. (a) Said debts are within the terms of the statutes of the State of Missouri relating to garnishments and attachments. Sec. 743, R.S. 1929; Property, Webster's New International Dictionary; Wilson v. Beckwith, 140 Mo. 359, 41 S.W. 985; State ex rel. Leahy v. Barnett, 193 Mo. App. 36, 180 S.W. 458; Farrar v. Amer. Express Co., 219 S.W. 989. (b) Said debts, in purview of the attachment statute, have no fixed situs, but are independent of the situs of the creditor, and may be garnisheed and attached where the debtor may be found. Sec. 723, R.S. 1929; Wyeth Hdw. & Mfg. Co. v. Lang & Co., 127 Mo. 242, 29 S.W. 1010; Western Stoneware Co. v. Mineral Springs Co., 172 Mo. App. 696, 155 S.W. 1083; Hartung v. Ins. Co., 174 Mo. App. 289, 156 S.W. 980; Farrar v. Amer. Express Co., 219 S.W. 989; Harris v. Balk, 198 U.S. 215, 49 L. Ed. 1023; L. & N. Railroad Co. v. Deer, 200 U.S. 176, 50 L. Ed. 426; Davis v. C., C., C., & St. L. Ry. Co., 217 U.S. 157, 54 L. Ed. 708; Wiener v. Am. Ins. Co., 224 Pa. 292, 73 Atl. 443; State ex rel. Lead Co. v. Jones, 270 Mo. 230, 192 S.W. 980; State ex rel. Henning v. Williams, 131 S.W. (2d) 561.

Fordyce, White, Mayne, Williams & Hartman for respondents; Samuel Kassel and John A. Bloomingston of counsel.

(1) The situs of the debt is at the place of residence of the garnishee. Wyeth Hdw. & Mfg. Co. v. Lang, 127 Mo. 242; Green's Bank v. Wickham, 23 Mo. App. 663; Fielder v. Jessup, 24 Mo. App. 91; Keating v. Amer. Refrigerator Co., 32 Mo. App. 293. (2) The defendant could not maintain a suit against the garnishees in Missouri for the reason that the maintenance of such suit would result in an undue burden upon interstate commerce. Davis v. Farmer's Co-operative Equity Co., 67 L. Ed. 996, 262 U.S. 312; Atchison, T. & S.F. Ry. Co. v. Wells, 265 U.S. 101, 68 L. Ed. 928; Panstwowe Zaklady Graviozne v. Automobile Ins. Co. of Hartford, 36 Fed. (2d) 504; Michigan C. Railroad Co. v. Mix, 278 U.S. 492, 73 L. Ed. 470. (3) Defendant (creditor) not being able to maintain suit in Missouri for recovery of the debt against garnishee (debtor), garnishment process was invalid and no jurisdiction over defendant was obtained thereby. Wyeth v. Lang, 127 Mo. 242; Harris v. Balk, 198 U.S. 215, 49 L. Ed. 1023; Chicago, R.I. & P. Ry. Co. v. Sturm, 174 U.S. 710, 43 L. Ed. 1144.

DOUGLAS, J.

This is an original action of mandamus to order the Presiding Judge of the Circuit Court for the City of St. Louis to set aside an order of dismissal as to one of two parties defendant and to reinstate the case so that it may proceed on its merits against both defendants.

The ultimate question for decision is whether the commerce clause of the United States Constitution may be considered as a defense to the issue of the availability of attachment and garnishment under our State laws against a non-resident interstate railroad.

The relator is the plaintiff in the case, a suit for $20,000 damages for personal injuries. He is a citizen of Missouri residing in Greene County. He was employed by a concern in Springfield, Missouri, which had ordered some pipe from a company in Chicago. The company received from the Belt Railway Company of Chicago a freight car in which to load the pipe. The car was loaded and consigned to the concern in Springfield. Upon reaching St. Louis it was picked up by the St. Louis-San Francisco Railway Company and taken to Springfield where it was delivered to the consignee. The relator was unloading the pipe when the floor of the car broke because of decayed floor boards causing the relator to be injured. He brought suit in the Circuit Court of St. Louis against the "Frisco" and the Belt Railways jointly. Service was had upon the Frisco and the cause is still pending against...