State ex rel. Macon Creamery Co. v. Mix

• Decision Date: 05 June 1928
• Citation: State ex rel. Macon Creamery Co. v. Mix, 222 Mo.App. 426, 7 S.W.2d 290 (Mo. App. 1928)
• Parties: STATE OF MISSOURI EX REL. MACON CREAMERY COMPANY, A CORPORATION, RELATOR, v. GEORGE E. MIX, JUDGE OF THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, MISSOURI, RESPONDENT. [*]
• Court: Missouri Court of Appeals

7 S.W.2d 290

222 Mo.App. 426

STATE OF MISSOURI EX REL. MACON CREAMERY COMPANY, A CORPORATION, RELATOR, v. GEORGE E. MIX, JUDGE OF THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, MISSOURI, RESPONDENT. ^[*]

Court of Appeals of Missouri, St. Louis

June 5, 1928

Editorial Note:

This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.

PROVISIONAL WRIT MADE ABSOLUTE.

PROVISIONAL WRIT MADE ABSOLUTE.

Bryan Williams & Cave for relator.

(1)The circuit court of St. Louis, Missouri, did not acquire jurisdiction of the relator in the case of The National City Bank of St. Louis v. Macon Creamery Company and Kroger Grocery & Baking Company, for the reason that the petition in said cause does not state facts showing that a cause of action against the relator accrued in St. Louis, Missouri, or facts sufficient to show that The National City Bank of St Louis has a joint cause of action against the relator and the Kroger Grocery & Baking Company and because the service of process attempted to be had was in Macon county, Missouri, and not in St. Louis.Secs. 1177, 1180, R. S. 1919;State ex rel. v. Bradley,193 Mo. 33.(2) The petition pending in the court below does not state facts sufficient to show that a cause of action in favor of The National City Bank and against the relator accrued in the city of St. Louis.Sec. 847, R. S. 1919;St. Charles Savings Bank v. Thompson & Gray Quarry Co.,210 S.W. 868;Story on Bills of Exchange, sec. 131;8 Corpus Juris, Bills & Notes, sec. 169;Amsinck v. Rogers,189 N.Y. 252;Crawford v. Bank,6 Ala. 12;Wood v. Gibbs,35 Miss. 559.(3) The giving of a check or the drawing of a draft does not constitute an assignment of the funds for which the check is drawn and the drawer thereof may countermand payment at any time before payment is made or written acceptance given by the drawer.Kellogg v. Bank,176 Mo.App. 288;Sec. 918, R. S. 1919;Foulk v. Hickman et al.,259 S.W. 496;Kimball v. Donald,20 Mo. 577;Clements v. Yeates,69 Mo. 623.(4) An unaccepted bill of exchange does not give the holder any interest in the fund or property against which it is drawn and does not operate as an equitable assignment of the fund.Kimball v. Donald,20 Mo. 577;Ford v. Angelredt et al.,37 Mo. 50;Bank v. Bogy,44 Mo. 13;Dickinson v. Coates,79 Mo. 250;Bayer v. Hamilton,21 Mo.App. 520;Carmachiel et al. v. Banking Co. et al.,191 S.W. 1043, 1046;Carr v. Bank,107 Mass. 45;Sec. 913, R. S. 1919.(5) Since the court does not have jurisdiction of the person of the relator, the remedy by appeal or writ of error is inadequate.Secs. 1177, 1180, 2057, R. S. 1919;Howard v. Pierce,38 Mo. 296;State v. Laughlin,75 Mo. 147;Burke v. McClure et al.,211 Mo.App. 446;State ex rel. v. Porterfield,283 S.W. 59;State ex rel. v. Trust Company,245 Mo. 99;State ex rel. v. McQuillan,262 Mo. 256;Priest v. Capitain,236 Mo. 446;State ex rel. v. Bradley,193 Mo. 33;State ex rel. v. Jones,270 Mo. 230;2 Bailey on Prohibition, page 1404.(6)Appellate courts in the exercise of their original jurisdiction to issue remedial writs do not require the petitions therefor to be verified where the allegations therein are confined to the proceedings of the inferior court.Art. XII, Chapter 13, R. S. 1919;Secs. 3,12, Art. VI, Constitution of Missouri;State ex rel. v. Eby,170 Mo. 497;State ex rel. v. Beechner,160 Mo. 78;State ex rel. v. Dearing,184 Mo. 647;Ex parte Bethurum, 66 Mo. 545;In re Webbers,275 Mo. 677;St. Louis, etc., Railroad Co. v. Wear,135 Mo. 230;State ex rel. v. Hirzel,137 Mo. 435;State ex rel. v. Wurdeman,304 Mo. 583;State ex rel. v. Seay,23 Mo.App. 623;Ostman v. Frey,148 Mo.App. 271;State ex inf. v. Towns, 153 Mo. 91;In re Sizer & Gardner,300 Mo. 369;State ex rel. v. Stobie,194 Mo. 14;Godfrey v. Llewellin, Salk 549, 91 Eng. Reprint 464;Guggin v. Bernett,4 Bur. 2035;Judy v. Lashly,50 W.Va. 628, 57 L. R. A. 413;Shortt on Prohibition, p. 498;Sec. 7048, R. S. 1919.(7) It is not a condition precedent to the issuance of a preliminary writ of prohibition that the petition be accompanied by certified copies of the proceedings of the inferior court.See cases cited under point 6 of this brief.(8)The State is not a necessary partyplaintiff in a petition for prohibition in any court.See authorities cited under point 6 of this brief.

Jeffries, Simpson & Plummer for respondent.

(1)Section 1177, R. S. 1919, dealing with venue in civil actions, is applicable to suits against corporations as well as section 1180, R. S. 1919.State ex rel. v. Davis,284 S.W. 464, and cases cited.(2)The circuit court of the city of St. Louis had the jurisdiction and power to determine whether plaintiff's petition stated a cause of action, where plaintiff's cause of action accrued, and whether relator had an office for the transaction of its usual or customary business within the city of St. Louis, and such determination is not subject to review by prohibition.State ex rel. v. Stobie,194 Mo. 14;State ex rel. v. Withrow,108 Mo. 1;State ex rel. v. Railroad,100 Mo. 59;Schubach v. McDonald,179 Mo. 163;State ex rel. v. Scarritt,128 Mo. 331;State ex rel. Fabrico v. Johnson,293 Mo. 302.(3) There being no showing in the record that relator did not have an office in the city of St. Louis for the transaction of its usual and customary business, the presumption is that respondent sustained the jurisdiction of the Court upon a proper showing that such an office was maintained.State ex rel. v. Gantt,274 Mo. 490;St. Charles Savings Bank v. Thompson & Gray Quarry Co.,210 S.W. 868.(4) The question as to where a cause of action for breach of contract accrues is not governed by decisions dealing with a question of conflict of laws and deciding by what law the obligor is to be held liable; where the breach is a refusal to pay money or deliver property, the cause of action accrues at the place designated in the contract for performance.Moherstadt v. Newman Motor Cars,204 Mo.App. 619.(5) Under the allegations of plaintiff's petition relator was not entitled to any notice of dishonor of its draft.R. S. 1919, sec. 900.And the cause of action against relator accrued immediately upon the dishonor of the draft at the place where payment of the same was refused.R. S. 1919, sec. 847.(6)Plaintiff's petition stated a cause of action against relator's codefendant, Kroger Grocery & Baking Company.

SUTTON, C. Daues, P. J., and Becker and Nipper, JJ., concur.

OPINION

Prohibition.Original Proceeding.

SUTTON, C.--

This is a proceeding in prohibition.Upon the filing of the petition, the provisional writ of this court issued.The cause has been submitted here upon the respondent's demurrer to the petition.

The relator, Macon Creamery Company, charges in its petition here that on the 12th day of August, 1927, there was filed in the circuit court of the city of St. Louis, by the National City Bank of St. Louis a petition, which (omitting caption and signature) is as follows, to-wit:

"Now comes the plaintiff in the above-entitled cause and for its cause of action states that it is and was at all the times herein mentioned a banking corporation duly organized and existing under and by virtue of the laws of the United States of America, with its principal office and place of business in the city of St. Louis, Missouri; that defendants are both corporations, duly organized and existing according to law that the defendantMacon Creamery Company has its principal office and place of business in the county of Macon, State of Missouri, and that defendantKroger Grocery and Baking Company has its principal Missouri office and place of business in the city of St. Louis, Missouri.

"Plaintiff states that on or about August 6, 1927, defendantKroger Grocery and Baking Company purchased certain goods, wares and merchandise from defendantMacon Creamery Company and agreed to pay therefor by honoring sight drafts drawn by said defendantMacon Creamery Company on it as drawee; that the said drafts were to be drawn for the amounts agreed upon to be paid for the said merchandise; that the said drafts were to be paid as a satisfaction of the indebtedness existing on account of the purchase of said merchandise, and were to be paid upon presentation to it of said sight drafts.

"Plaintiff further states that pursuant to said understanding, arrangement and agreement between defendants, defendantMacon Creamery Company, on or about August 6, 1927, drew its sight draft dated Macon, Missouri, August 6, 1927, in the sum of three thousand nine hundred thirty-three dollars ($ 3933), payable to the order of Farmers Trust Company of Macon, as payee, and upon the Kroger Grocery and Baking Company, care of American Trust Company, St. Louis, Missouri, as drawee therein; that on or about August---, 1927, defendantMacon Creamery Company duly endorsed said draft and sold, assigned and transferred the same for value to the Farmers Trust Company of Macon, payee therein; that a duly verified copy of said draft is hereto attached, marked 'Exhibit A.'

"That pursuant to said understanding, arrangement and agreement between defendants, defendantMacon Creamery Company, on or about August 9, 1927, drew its sight draft dated Macon Missouri, August 9, 1927, in the sum of three thousand four hundred eighty-eight and 40/100 dollars ($ 3488.40), payable to the order of Farmers Trust Company of Macon, as payee, and upon the Kroger Grocery and Baking Company, care of American Trust Company, St. Louis, Missouri, as drawee therein; that on or about August---, 1927, defendantMacon Creamery Company duly endorsed said draft and sold, assigned and transferred the same for value to the Farmers Trust...