State ex rel. Kansas City Bridge Co. v. Terte

• Decision Date: 12 September 1939
• Docket Number: 36394
• Parties: State of Missouri at the relation of Kansas City Bridge Company, a Corporation, Relator, v. Ben Terte, Judge of Division Nine of the Circuit Court of the Sixteenth Judicial Circuit
• Court: Missouri Supreme Court

131 S.W.2d 587

345 Mo. 95

State of Missouri at the relation of Kansas City Bridge Company, a Corporation, Relator, v. Ben Terte, Judge of Division Nine of the Circuit Court of the Sixteenth Judicial Circuit

No. 36394

Supreme Court of Missouri

September 12, 1939

Provisional rule made absolute.

Lathrop Crane, Reynolds, Sawyer & Mersereau, Richard S. Righter, R Arch Smith and William A. Graham for relator.

(1) The respondent is acting in excess of his powers because the Missouri Workmen's Compensation Commission has exclusive jurisdiction over the claim for compensation, including the question whether Cora A. Liechty was the wife of Lewis Edwin Liechty at the time of his death. State ex rel. Mo. Pac Ry. Co. v. Williams, 120 S.W. 740; R. S. 1929, secs. 3301, 3310, 3319, 3342; Kemper v. Gluck, 39 S.W.2d 330; Pfitzinger to the Use of Stotscky v. Shell Pine Line Corp., 46 S.W.2d 955, 226 Mo.App. 86; Sylcox v. Natl. Lead Co., 38 S.W.2d 497, 225 Mo.App. 543; 71 C. J. 1480, sec. 1488; Kemmerling v. Koch Erecting Co., 89 S.W.2d 674; Cotter v. Valentine Coal Co., 14 S.W.2d 660; Delfelder v. Norton Bros. Const. Co., 98 S.W.2d 127; State ex rel. Brewen-Clark Syrup Co. v. Workmen's Comp. Comm., 8 S.W.2d 897; Caldwell v. Kreis & Sons, 72 S.W.2d 201; Ribas v. Stone & Webster Eng. Corp., 95 S.W.2d 1221; Denning v. Star Pub. Co., 180 N.E. 685; Reed v. St. Louis S.W. Ry. Co., 95 S.W.2d 887; Warren v. Amer. Car & Foundry Co., 38 S.W.2d 718, 327 Mo. 755; Northern States Contracting Co. v. Swope, 111 S.W.2d 610, 271 Ky. 140. (a) The declaratory judgment law does not enlarge the jurisdiction of the circuit court nor authorize it to infringe upon the jurisdiction of the Workmen's Compensation Commission. Mo. Declaratory Judgment Act, Laws 1935, p. 218, secs. 1, 6; Borchard on Declaratory Judgments, 156; Updike Inv. Co. v. Employer's Liability Assur. Corp., 258 N.W. 470; U.S. Fid. & Guar. Co. v. Savoy Grill, 1 N.E.2d 946; Moore v. Louisville Hydro-Electric Co., 10 S.W.2d 466; Chicago, R. I. & P. Ry. Co. v. State Highway Comm., 17 S.W.2d 535; Stewart v. Herten, 249 N.W. 552. (b) Having invoked the jurisdiction of the commission, the plaintiff cannot be heard to deny that the commission has jurisdiction to pass upon the issues relevant to her claim. Oren v. Swift & Co., 51 S.W.2d 59. (2) Cora A. Liechty's action in the Jackson County Circuit Court is a collateral attack upon the final decree of a court of competent jurisdiction, regular on its face, which circuit court has no jurisdiction to entertain. Lieber v. Lieber, 143 S.W. 458, 239 Mo. 1; Ray v. Ray, 50 S.W.2d 142, 330 Mo. 530; McDermott v. Gray, 198 Mo. 266, 95 S.W. 435; Barrett v. Barrett, 79 S.W.2d 506; Howey v. Howey, 240 S.W. 450; Keena v. keena, 10 S.W.2d 344; Howard v. Strode, 146 S.W. 792; Reger v. Reger, 293 S.W. 414; Adamson v. Snider, 131 Kan. 284, 291 P. 744; Kaufmann v. Annuity Realty Co., 301 Mo. 638; In re Sisk, 305 Mo. 328; State ex rel. Johnson v. Merchants & Miners Bank, 279 Mo. 228. (a) The court has no jurisdiction under the declaratory judgment act to readjudicate matters already finally determined. Feree v. Feree, 115 S.W.2d 1055, 273 Ky. 238; Back's Guardian v. Bardo, 27 S.W.2d 960, 234 Ky. 211. (3) Since an action is pending before the Compensation Commission, a tribunal of competent jurisdiction, to permit the circuit court to exercise jurisdiction would result in the undue harassment of relator. Bartlett v. Littrell, 26 S.W.2d 768; State ex rel. Ingenbohs v. Landis, 158 S.W. 883; State ex rel. Sullivan v. Reynolds, 107 S.W. 487; Maclane v. Wayne County Judge, 52 Mich. 259, 18 N.W. 396.

Cowgill & Popham, Guy Green, Jr., Clinton R. Krimminger and W. Porter Bondies for respondent.

(1) Declaratory judgment suit proper proceeding to determine plaintiff's status. Laws 1935, p. 218, sec. 1097; Borchard on Declaratory Judgments, p. 625, chap. 3, p. 391; 43 Har. Law Rev., p. 479; Dodge v. Campbell, 220 N.Y.S. 262; Baumann v. Baumann, 226 N.Y.S. 576; Gold v. Gold, 275 N.Y.S. 506; Pignatelli v. Pignatelli, 8 N.Y.S. (2d) 10; Baumann v. Baumann, 165 N.E. 819; Lowe v. Lowe, 192 N.E. 291; Miller v. Currie, 242 N.W. 570; Henry v. Henry, 144 A. 18. (2) Declaratory Judgment Act plaintiff's only remedy because plaintiff may not pursue any other action since the party obtaining the divorce is dead. Jonsson v. Erickson, 108 Kan. 580, 196 P. 435; Adamson v. Snider, 131 Kan. 284, 291 P. 744; Dodge v. Campbell, 220 N.Y.S. 262; Baumann v. Baumann, 226 N.Y.S. 576; Gold v. Gold, 275 N.Y.S. 506; Miller v. Currie, 242 N.W. 570; Henry v. Henry, 144 A. 18; Lieber v. Lieber, 143 S.W. 458. (3) Compensation Commission has no jurisdiction to go behind divorce decree apparently regular on its face. (4) Action does not invade jurisdiction of Compensation Commission because it determines nothing Commission has power to pass on. Borchard on Declaratory Judgments; Baumann v. Baumann, 226 N.Y.S. 576.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

This proceeding in prohibition is pending on relator's motion for judgment on the pleadings.

In March, 1938, Cora A. Liechty instituted an action for a declaratory judgment in the Circuit Court of Jackson County Missouri, against the Kansas City Bridge Company, a Missouri corporation, relator here, the general objects and purposes of which action were a declaration that a certain divorce decree granted Lewis E. Liechty is of no force and effect; that she is the lawful widow of Lewis E. Liechty; and that certain proceedings instituted by her before the Workmen's Compensation Commission of Missouri be stayed pending the determination of her status under said petition. Her petition alleged her marriage to Lewis E. Liechty on October 23, 1921; Lewis E. Liechty's obtaining a divorce on the 20th day of September, 1935, in the District Court of Wyandotte County, Kansas; the death of Lewis E. Liechty on July 24, 1937, as the result of an accident arising out of and while performing services within the scope of his employment for said Kansas City Bridge Company; and her filing of due and timely claim for compensation under the Workmen's Compensation Law of Missouri. It charged that she had never lived in Kansas with said Lewis; that she was never served with summons; that said Lewis made a false affidavit in aid of service by publication in swearing he did not know and had been unable to ascertain whether she was living or dead or her whereabouts; that he testified he did not know petitioner's whereabouts and was unable to forward registered notification of said suit, all in contravention of the laws of Kansas; that said decree was procured by fraud upon the court and petitioner; that Lewis E. Liechty left no estate and no minor children surviving; that the Kansas City Bridge Company was a self-insurer, and that she and said company were the only parties interested in or to be affected by said compensation proceedings or the relief prayed. It further alleged that the record and decree in the Kansas divorce proceeding "are valid on their face." Relator's demurrer nisi was overruled and this proceeding followed.

Section 1 of the Missouri Declaratory Judgment act (Laws 1935, pp. 218-220, Mo. Stat. Ann., secs. 1097a-1097o, p. 1388) provides: "The Circuit Courts and Courts of Common Pleas of this State, within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree."

The Michigan Declaratory Judgment act (Mich. C. L. 1929, Sec. 13903) reads, in part: "No action or proceeding in any court of record shall be open to objection on the ground that a merely declaratory judgment, decree or order is sought thereby, and the court may, in cases of actual controversy, make binding declarations of rights . . ." In Miller v. Siden, 259 Mich. 19, 242 N.W. 823, the Michigan court ruled "The proceeding for declaratory judgment is not a substitute nor alternative for the common law actions." [See, also, Eiffel R. & I. Co. v. Ohio Citizens Trs. Co., 55 Ohio App. 1, 8 N.E.2d 470[1], reviewing cases; Brindley v. Meara, 209 Ind. 144, 198 N.E. 301, 101 A. L. R. 682, 688; Annotation, 87 A. L. R. 1219, h.]

The Kentucky act (Carroll's Ky. Code, 1938, Sec. 639a-1) provides: "In any action in a court of record of this Commonwealth having general jurisdiction wherein it is made to appear that an actual controversy exists, the plaintiff may ask for a declaration of rights, . . ." The case of Ferree v. Ferree, 273 Ky. 238, 115 S.W.2d 1055, is somewhat analogous to the instant action. Emma Ferree had obtained a divorce from Cyrus Ferree while he was confined in the penitentiary and was awarded alimony and a lien on his land to secure payment. Thereafter, Cyrus Ferree, claiming the whole divorce proceeding was void, instituted his action for a declaration of rights. The court said: "In Black's Guardian v. Bardo, 234 Ky. 211, 27 S.W.2d 960, we pointed out that the purpose of the Declaratory Judgment Act was to have a declaration of rights not theretofore determined, and not to determine whether rights, theretofore adjudicated had been properly adjudicated, and held that an action will not lie under the Declaratory Judgment Act to determine the propriety of a judgment in a prior action between the same parties. Were the rule otherwise, a proceeding would lie under the Declaratory Judgment Act to determine whether the judgment passing upon the validity of a prior judgment was proper, and there would be no end to that kind of...