State ex rel. Henning v. Williams

Citation131 S.W.2d 561,345 Mo. 22
Decision Date05 September 1939
Docket Number36437
PartiesState 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
CourtUnited States State Supreme Court of Missouri

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 F.2d 427; Standard Stoker Co. v. Lower, 46 F.2d 678; Page Belting Co. v. Joseph, 226 N.Y.S. 723; Ryan v. Suyo Power & Mining Co., 183 P. 250; Hobson v. Met. Casualty Co., 300 P. 87; Larson v. Dubuque Fire & Marine Ins. Co., 213 N.W. 140; Wachtel v. Diamond State Engineering Corp., 213 N.Y.S. 77; Boyer v. Northern Pac., 66 P. 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.

OPINION

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 still pending on a motion to remand. Another summons issued out of the state court was served on the relator in St. Charles County. He appeared specially and filed a plea in abatement to the jurisdiction based on the ground that his co-defendant, the Shell Company, is a resident of Virginia, not of Missouri, in consequence of which the venue of the action is in St. Charles County where he lives, not in St. Louis where the Shell Company has an office. The question is one of statutory construction. The plea was overruled by the trial court and relator brings prohibition here on the same grounds.

His legal theory is that the general venue statute, Section 720, Revised Statutes 1929 (Mo. Stat. Ann., p. 929), governs the case below because the action was brought against him and the Shell Company jointly; that Section 723, Revised Statutes 1929 (Mo. Stat. Ann., p. 936), the venue statute in suits against corporations, is not controlling because that statute applies only when a corporation, domestic or foreign, is the sole valid defendant. Both these contentions are well founded: State ex rel. Columbia National Bank v. Davis, 314 Mo. 373, 284 S.W. 464, an exhaustive banc decision. The case therefore hinges on the construction to be given Section 720. The only parts thereof which can have any bearing on the controversy are as follows:

"Suits instituted by summons shall, except as otherwise provided by law, be brought: . . .; second, when there are several defendants, and they reside in different counties, the suits may be brought in any such county; third, when there are several defendants, some residents and others non-residents of the state, suit may be brought in any county in this state in which any defendant resides;" (For the legislative history of the several clauses of this section see State ex rel. Standard Fire Ins. Co. v. Gantt, 274 Mo. l. c. 504, 505, 203 S.W. l. c. 967; 2 Mo. Stat. Ann., p. 929).

If the Shell Company is a resident of the City of St. Louis within the meaning of the second clause the action was well brought in that city. But if it is not then neither clause applies, for, although the third clause covers actions where one or more of the defendants are non-residents, still it requires the suit to be brought in a county where some defendant resides. So the question is whether a foreign corporation licensed to do business in this State and having an office and place of business in some county is a resident of that county for the purposes of service under clause 2 of Section 720.

Relator cites several standard texts which state the general rule that a corporation can have only one legal residence, namely, in the state of its creation, even though it be licensed to transact business in other states. [*] He notes also the fact that the same rule is enforced in the Federal courts when the jurisdiction and venue are dependent on diversity of citizenship, as in: Seaboard Rice Milling Co. v. C., R. I. & P. Ry. Co., 270 U.S. 363, 366, 70 L.Ed. 633, 46 S.Ct. 247; Central West Public Service Co. v. Craig, 70 F.2d 427, 430(6). Three state cases listed in his brief may be in point: Page Belting Co. v. Joseph, 226 N.Y.S. 723, 727; Wachtel v. Diamond State Engineering Corp., 213 N.Y.S. 77; Larson v. Dubuque Fire & Marine Ins. Co., 238 Mich. 366, 213 N.W. 140.

But the rule contended for by relator is not the general rule as to venue, and is not supported by most of the case and text law cited by him. Thus it is said in 14a Corpus Juris, section 4119, page 1398, that: "For purposes of venue a corporation is deemed a non-resident of states other than the one in which it is incorporated. In the absence of any constitutional or statutory provision fixing the place of trial in actions against foreign corporations in any particular county, the action may be brought and...

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