State ex rel. Great Am. Ins. Co. v. Jones

• Citation: 396 S.W.2d 601
• Decision Date: 08 November 1965
• Docket Number: No. 51434,51434
• Parties: STATE ex rel. GREAT AMERICAN INSURANCE COMPANY, Relator, v. Honorable Douglas L. C. JONES, Judge of the Circuit Court of St. Louis County, Missouri, Respondent.
• Court: United States State Supreme Court of Missouri

Page 601

396 S.W.2d 601

STATE ex rel. GREAT AMERICAN INSURANCE COMPANY, Relator, v. Honorable Douglas L. C. JONES, Judge of the Circuit Court of

St. Louis County, Missouri, Respondent.

No. 51434.

Supreme Court of Missouri, En Banc.

Nov. 8, 1965.

Rehearing Denied Dec. 13, 1965.

Francis L. Kenney, Jr., Bernard A. Reinert, St. Louis, for relator, Great American Ins. Co., Kenney, Reinert & Hespen, St. Louis, of counsel.

John A. Biersmith, Charles J. Fraas, Jr., Kansas City, for respondent, Rafter, Biersmith, Miller & Walsh, Kansas City, of counsel.

HYDE, Judge.

Relator seeks mandamus to require respondent Judge to set aside an order entered March 17, 1965, quashing service, dissolving attachments and garnishments and dismissing relator's action against Louis Lesser Enterprises and D & L Construction Company and to reinstate said cause so it may proceed on its merits. Respondent has stayed this order until this court rules on the petition for mandamus. Both parties have filed motions in this Court for judgment on the pleadings.

Relator's petition against Lesser and D & L (foreign corporations based in California) alleged they were engaged in a joint venture to build housing at Fort Leonard Wood and that Clarence W. Franks was a subcontractor whom they owed $82,348.38; that relator (qualified to do business in this state), having furnished Franks' performance bond, completed his work at an additional cost of $151,172.71; and that relator was the owner of this claim in the total sum of $233,521.09 by subrogation and assignment. Relator's petition, in a second count, stated a claim for the same amount based on fraud.

On garnishment proceedings, Emerson Electric Company disclosed it was obligated to Lesser for monthly rents and taxes on real estate, which it appears is $4,125.00 per month and annual taxes, totaling more than $33,000.00 in rentals at the time the case was heard in this court. Notice of commencement of suit by attachment and garnishment was given to both defendants by registered mail and also such notice was served on Lesser in California by a deputy sheriff. Both defendants, appearing specially, by the same counsel, filed motions to dismiss, which the court sustained. Respondent's brief summarizes the grounds of the motions as follows: '(1) Lack of in rem jurisdiction as the present Relator had previously caused exactly the same property purported to be attached herein to become subject to the process of the District Court for the Western District of Missouri; (2) a lack of in personam jurisdiction because of invalid service; (3) lack of venue; (4) a multiplicity of suits between the same parties concerning the same subject matter; (5) failure to provide security for costs; (6) absence of the real party in interest; (7) failure to join other indispensable parties; (8) forum non conveniens; and (9) failure to state a claim on which relief could be granted.'

Respondent's first contention is that whether the dismissal was right or wrong relator's only remedy is by appeal. However, there is no final appealable judgment in this case because the order of dismissal entered by the court on March 17, 1965, was by order made the next day, March 18, 1965, stayed until April 2, 1965, to allow relator time to apply to an appellate court for an appropriate writ. Thereafter, on April 1, 1965, when relator's petition for mandamus had been filed in this court, the stay of the dismissal order of March 17, 1965, was 'extended until the Supreme Court of Missouri rules on said petition for a writ of mandamus.' All this is admitted in respondent's return and thus it is clear that the order of dismissal has not been entered as a final judgment but only amounts to an indication of the ruling and judgment respondent has decided to enter. To be final a judgment must operate in praesenti. Thompson v. Hodge, Mo.App., 348 S.W.2d 11, 14; Stone v. Boston, Mo.App., 218 S.W.2d 783, 787; see also 30A Am.Jur. 241, Judgments, Sec. 122; 49 C.J.S. Judgments Sec. 11, p. 35; Barlow v. Scott, Mo.Sup., 85 S.W.2d 504, 519. As stated, 49 C.J.S. 35: '[A]n interlocutory judgment is one which reserves or leaves some further question or direction for future determination.' Therefore, we must hold the judgment of dismissal in this case to be interlocutory and not a final judgment; and that relator does not have a right of appeal at this time. In that situation, we consider the only matter before us is the question of jurisdiction, which is the principal issue briefed and the one to which the writ of mandamus is directed.

Thus the next question is whether mandamus is available as a remedy under the circumstances of this case. We have held mandamus is an appropriate remedy when the court dismisses a case on the ground that it does not have jurisdiction as a matter of law and not depending upon the determination of any facts. State ex rel. Fielder v. Kirkwood, 345 Mo. 1089, 138 S.W.2d 1009; State ex rel. Foraker v. Hoffman, 309 Mo. 625, 274 S.W. 362. In the Fielder case, as here, jurisdiction of a foreign corporation was obtained by garnishment of sums due it by corporations doing business in this state. It was contended that the situs of the indebtedness was in the domicile state of the foreign corporation and that the attachments of the funds of the foreign corporation (a railroad not operating in Missouri) 'would violate the commerce clause of the United States Constitution by imposing an unreasonable burden on interstate commerce.' We overruled these contentions saying: 'Let it be borne in mind the creditor must be a non-resident of this state or attachment will not lie. Both garnishees are in this state subject to process. The indebtedness under our decisions was here subject to attachment and garnishment, and was conceded both as to liability and amount.' We find that to be the situation in this case and hold mandamus to be a proper remedy to determine respondent's claim of lack of jurisdiction.

This claim is that garnishment herein does not give the court jurisdiction because the property (amounts due Lesser) 'has been at the instance of this same plaintiff (relator) been brought into the custody and control of the U. S. District Court for the Western District of Missouri prior to the institution of this proceeding by subsisting order of such court.' Respondent cites 14 Am.Jur. 446, Courts, Sec. 251, that 'property in the possession of one court is not liable to seizure on process from another court'; and that 'where property has been seized under process from a Federal court and is in the custody of the marshal, the right to hold it is a question for the determination of the Federal court under the process of which it as seized, and possession cannot be interfered with by a state court.' However, in this same section it it stated: 'Where one of the courts has thus secured possession or dominion of specific property, the suit in the co-ordinate jurisdiction to affect the same property should be stayed until the proceedings in the court which first obtained jurisdiction are concluded or until ample time for their termination has elapsed.' In 1 C.J.S. Actions Sec. 133, p. 1411, it is stated: 'Where, however, the action is in rem or quasi in rem, that court, whether state of federal, which first takes possession or control, actual or potential, of the res, will exercise its power to completion and the other court should stay proceedings before it pending the determination in the other court.'

The pendency of an action (either personal or in rem) in either a state or a ...