State ex rel. Henning v. Williams, 36437.

• Decision Date: 05 September 1939
• Docket Number: No. 36437.,36437.
• Citation: 131 S.W.2d 561
• Parties: STATE OF MISSOURI at the relation of WILLIAM HENNING, Relator, v. CHARLES B. WILLIAMS, Judge of Division No. One of the Circuit Court of the City of St. Louis, and JOSEPH H. CHURCHILL.
• Court: Missouri Supreme Court

131 S.W.2d 561 STATE OF MISSOURI at the relation of WILLIAM HENNING, Relator,
v.
CHARLES B. WILLIAMS, Judge of Division No. One of the Circuit Court of the City of St. Louis, and JOSEPH H. CHURCHILL. No. 36437. Supreme Court of Missouri. Court en Banc, September 5, 1939.

[131 S.W.2d 562]

Prohibition.

PROVISIONAL RULE DISCHARGED.

Cobbs, Logan, Roos & Armstrong for relator.

(1) Section 720, Revised Statutes 1929, is the controlling venue statute in actions brought against a corporation and another as joint defendants. Secs. 720, 723, R.S. 1929; State ex rel. Columbia Natl. Bank of Kansas City v. Davis, 284 S.W. 464. (2) A foreign corporation maintaining an office in the city of St. Louis, Missouri, is not a resident within the meaning of the term "resident" as used in Section 720, Revised Statutes 1929. Sec. 720, R.S. 1929; Title 28, U.S.C.A., sec. 112; Sec. 205-1, Remington R.S. of Washington; Seaboard Rice Milling Co. v. C., R.I. & Pac. Ry. Co., 270 U.S. 363, 70 L. Ed. 633; In re Keasly & Mattison Co., 160 U.S. 221, 40 L. Ed. 402; Shaw v. Quincy Mining Co., 145 U.S. 444, 36 L. Ed. 768; Southern Pac. Co. v. Denton, 146 U.S. 203, 36 L. Ed. 942; Ex parte Schollenberger, 96 U.S. 369, 24 L. Ed. 583; Central West Pub. Serv. Co. v. Craig, 70 Fed. (2d) 427; Standard Stoker Co. v. Lower, 46 Fed. (2d) 678; Page Belting Co. v. Joseph, 226 N.Y. Supp. 723; Ryan v. Suyo Power & Mining Co., 183 Pac. 250; Hobson v. Met. Casualty Co., 300 Pac. 87; Larson v. Dubuque Fire & Marine Ins. Co., 213 N.W. 140; Wachtel v. Diamond State Engineering Corp., 213 N.Y. Supp. 77; Boyer v. Northern Pac., 66 Pac. 826; Thornton v. None & Sinnok Co., 260 Ill. App. 76; American Barge Line Co. v. Board of Supervisors, 55 S.W. (2d) 416; Fletcher, Cyclopedia Corporations, sec. 4025; 1 Cook on Corporations (7 Ed.), p. 3; 1 Thompson on Corporations (2 Ed.), sec. 490, p. 592; 1 Clark & Marshall on Private Corporations, sec. 114, p. 352. (3) A summons directed to a sheriff of a county other than the county of venue is void and of no effect unless some party defendant is a resident of the county of venue. Secs. 720, 723, R.S. 1929; Christian v. Williams, 111 Mo. 429.

Joseph N. Hassett and Vernon L. Turner for respondents.

(1) A foreign corporation, licensed to do business by the State of Missouri and maintaining an office within the city of St. Louis for the transaction of its usual business, is a resident of the city of St. Louis, within the meaning and purview of the Missouri venue statutes for the purposes of suing and being sued. Farnsworth v. Terre Haute, Alton & St. Louis Railroad Co., 29 Mo. 75; St. Louis v. Wiggins Ferry Co., 40 Mo. 581; Herryford v. Aetna Ins. Co., 42 Mo. 148; Bailey v. Equitable Fire Ins. Co., 68 Mo. 617; Harding v. C. & A. Ry. Co., 80 Mo. 659; Meyer v. Phoenix Ins. Co., 184 Mo. 481; Sidway v. Mo. Land & Live Stock Co., 187 Mo. 649; Fitzmaurice v. Turney, 214 Mo. 610; State ex rel. v. Grimm, 239 Mo. 135; Gold Issue Mining & Milling Co. v. Penn. Fire Ins. Co. of N.Y., 267 Mo. 524, 243 U.S. 93; Young v. Niles & Scott Co., 122 Mo. App. 392; Curfman v. Fid. & Deposit Co. of Maryland, 167 Mo. App. 507; State ex rel. Macon Creamery Co. v. Mix, 222 Mo. App. 426, 7 S.W. (2d) 290; Hartell v. Amer. Ry. Express Co., 225 S.W. 131. (2) Suit was properly brought in the city of St. Louis, the residence of the defendant Shell Petroleum Corporation, and summons was properly issued to St. Charles County for the codefendant, relator herein. Curfman v. Fid. & Deposit Co. of Maryland, 167 Mo. App. 507; State ex rel. Macon Creamery Co. v. Mix, 222 Mo. App. 426, 7 S.W. (2d) 290. (3) The court properly overruled relator's plea to the jurisdiction; the petition, summons, and return were regular on their face, and there was nothing in the record to overcome the presumption that the Shell Petroleum Corporation was a resident of the jurisdiction where sued. St. Charles Savings Bank v. Thompson & Gray Quarry Co., 210 S.W. 868. (a) No lack of jurisdiction over the person was disclosed by the petition or the record; therefore, the proper method of raising this question was by a plea in abatement. Thomasson v. Mercantile, etc., Ins. Co., 217 Mo. 485; State ex rel. v. Grimm, 239 Mo. 135; Mertens v. McMahon, 334 Mo. 175, 66 S.W. (2d) 127; Kingman-St. Louis Implement Co. v. Bentley Bros. Hdw. Co., 137 Mo. App. 308; Curfman v. Fid. & Deposit Co. of Maryland, 167 Mo. App. 507; Roberts v. Amer. Natl. Assur. Co., 201 Mo. App. 239, 212 S.W. 390. (b) Prohibition should not issue where there is an adequate remedy by appeal. State ex rel. v. Roehrig, 323 Mo. 515, 19 S.W. (2d) 626; State ex rel. Fairbanks, etc., v. Ayers, 116 Mo. App. 90.

ELLISON, J.

Prohibition to Hon. Charles B. Williams, judge of the Circuit Court of the City of St. Louis, Division I, to prevent him from exercising jurisdiction over the person of the relator in the cause below mentioned. For return respondent demurred to the petition set out in our provisional rule, thereby resting the proceeding on issues of law. Joseph Churchill and his wife were injured in St. Charles County in December, 1937, in a collision with an oil truck owned by the Shell Petroleum Corporation and driven by the relator, its employee. The relator is a resident of St. Charles County. Churchill is a resident of St. Louis County. The Shell Company, as we shall call it, is a Virginia corporation licensed to do business in this State and maintaining an office and place of business in the city of St. Louis. But that city is a separate county for governmental purposes under its charter and Section 23, Article 9 of the Constitution. Churchill brought suit in the above court in the City of St. Louis for over $18,000 damages allegedly sustained through the relator's negligence in the operation of the truck, and joined relator and the Shell Company as defendants.

Summons was issued and served on the Shell Company in St. Louis. It made no objection to the service, but filed a petition and bond for removal to the Federal Court, where the proceeding is...