State ex rel. Fielder v. Kirkwood

• Decision Date: 02 April 1940
• Docket Number: 36779
• Citation: 138 S.W.2d 1009,345 Mo. 1089
• 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

345 Mo. 1089

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

April 2, 1940

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 nonresident 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 A. 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 F.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.

OPINION

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 it. As to the Belt Railway, the sheriff's return showed that it could not be found in the City of St. Louis; subsequently substituted service was had upon it. The plaintiff obtained an attachment against the Belt Railway and in aid of the attachment, writs of garnishment were served on the Alton and the Illinois Central Railroads at their respective offices in the City of St. Louis. In answer to the interrogatories filed in these garnishments the garnishees each admitted owing substantial sums to the Belt Railway. Thereafter, the Belt Railway attacked the jurisdiction of the court on the ground that the garnishments constituted an undue burden on interstate commerce and that the debts of the garnishees to it were not lawfully subject to garnishment or attachment.

The plea to the jurisdiction was submitted below on an agreed statement of facts which, briefly, showed that the Belt Railway was an Illinois corporation and did no business in Missouri and that it operated switching and terminal facilities in Chicago. The garnishees were not Missouri corporations. The indebtedness of the garnishees arose from mutual running accounts kept in Chicago where the balances were struck.

The court sustained the plea to the jurisdiction and dismissed plaintiff's action against the Belt Railway. Thereupon, he applied here for mandamus asking that the order of dismissal be set aside and the cause reinstated against the Belt Railway or, stated differently, that the court below exercise its jurisdiction over the Belt Railway and proceed to try the case on its merits against both defendants.

A writ of mandamus has lost its prerogative quality and its issuance rests in judicial discretion. The doctrine is settled that in every case such discretion must be reckoned with and applied with judicial self-restraint. [State ex rel. Warde v. McQuillin, 262 Mo. 256, 171 S.W. 72.] We must first determine whether mandamus is the proper remedy in this case.

Mandamus will not issue to an inferior court whenever there is another adequate remedy such as appeal or writ of error; or to review the proceedings on the ground of error; or to direct the entry of a particular judgment. But mandamus will lie to set an inferior court in motion (State ex rel. Laclede Bank v. Lewis, 76 Mo. 370) to hear and determine a cause or matter in issue in the exercise of its judicial function when its refusal to act is a denial of justice. [State ex rel. Harris v. Laughlin, 75 Mo. 358.]

We have established the rule that when, upon a preliminary question of jurisdiction depending wholly upon the law and not upon the facts, the court misconceives its jurisdiction of the cause or of the parties and refuses to proceed to a final determination upon the merits then the appellate court will issue its writ of mandamus to compel the lower court to reinstate the matter and proceed to its final determination without attempting to dictate what the result of such determination shall be. [Castello v. St. Louis Circuit Court, 28 Mo. 259; State ex rel. Wright v. McElhinney (Mo. App.), 72 S.W.2d 895, and the cases therein cited.] As the facts in the case at bar pertaining to the question of jurisdiction over the Belt Railway are admitted, the question is one purely of law and the above rule applies. [State ex rel. Case v. Seehorn, 283 Mo. 508, 223 S.W. 664.] In such cases no question of fact being involved, we have held that an appeal or writ of error would not furnish an adequate remedy. [State ex rel. General Motors Acceptance Corp. v. Brown, 330 Mo. 220, 48 S.W.2d 857.] Mandamus is the proper remedy here. We have heretofore decided that mandamus is a proper remedy in a case involving similar facts. [State ex rel. Foraker v. Hoffman, 309 Mo. 625, 274 S.W. 362.]

Now we come to the issue of initial jurisdiction over the party, the Belt Railway, not on the question of compelling it to submit to our jurisdiction under the principal suit but on the question whether the trial court had...