State ex rel. McCormick v. McDougal
| Decision Date | 10 February 1885 |
| Citation | 16 Mo.App. 414 |
| Parties | STATE OF MISSOURI TO USE OF J. H. MCCORMICK, Respondent, v. J. H. MCDOUGAL ET AL., Appellants. |
| Court | Missouri Court of Appeals |
APPEAL from the St. Louis Circuit Court, ADAMS, J.
Affirmed.
JAMES P. DAWSON, for the appellants: An appearance which is not general waives no right of the party thus appearing.-- Smith v. Rollins, 25 Mo. 408; Pomeroy v. Betts, 31 Mo. 419; Lincoln v. Hilbus, 36 Mo. 149.
KEHR & TITTMANN, for the respondent: The court acquired jurisdiction of the person.-- Atkins v. Borstler, 46 Mich. 552; Murphy v. Winter, 18 Ga. 690; Wynn v. Kiser, 7 Blackf. 299; Vinal v. Core, 18 W. Va. 20; Covill v. Moffett, 7 Jones L. 381.
The plaintiff resides in the city of St. Louis. The defendant McDougal is a resident of the state of Illinois, and defendant Million, of Clark County, Missouri. The defendants were both served with process in the city of St. Louis. The only question presented in this appeal is, whether the St. Louis circuit court acquired jurisdiction of the persons of the defendants?
Revised Statutes, section 3481, provides: “Suits instituted by summons shall, except as otherwise provided by law, be brought:--
First. When the defendant is a resident of the state, either in the county within which the defendant resides, or in the county within which the plaintiff resides, and the defendant may be found.
Second. When there are several defendants, and they reside in different counties, the suit may be brought in any such county.
Third. When there are several defendants, some residents and some non-residents of the state, suit may be brought in any county in which any defendant resides.
Fourth. When all the defendants are non-residents of the state, suit may be brought in any county.”
The defendants maintain that by the terms of the third clause, this suit could properly be brought no where but in Clark County, Missouri, where one of the defendants resides. Such a construction, ignoring all the other parts of the law, would set aside the plainest rules of statutory interpretation. If the clause stood entirely alone, there might be some plausibility in the claim.
The idea involved in the defendants' point is that, inasmuch as “there are several defendants, some residents and others non-residents of the state,” the third clause is the only provision applicable; and that, as to each defendant, although “found” in the city of the plaintiff's residence, the second alternative of the first clause can not be applied, because it is superseded by the special provision made in the third clause for this particular class of cases. This would amount to a repeal by implication.
Let us apply the same test to the operation of the second clause. By that interpretation, if there are several defendants residing in different counties in this state, a suit against them can be brought no where but in one of those counties.
To illustrate: A, residing in the city of St. Louis, holds a promissory note signed by B and C, who reside in different counties in this state, outside of St. Louis. If B be found in St. Louis A may sue him there, by virtue of the second alternative in the first clause. If C be afterwards found in the same place A may sue him also in the same court. But if unfortunately he should happen to sue them both in one proceeding, the jurisdiction must fail, because of the special provision made...
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...of Howell County under the provisions of subsection (3) of Sec. 508.010. Under this contention relator cites State, to Use of McCormick v. McDougal, 16 Mo.App. 414. This case was cited by the St. Louis Court of Appeals February 10, 1885. The facts reveal that plaintiff was a resident of the......
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