State ex rel. Reid v. Barrett
| Decision Date | 20 June 1938 |
| Docket Number | No. 24776.,24776. |
| Citation | 118 S.W.2d 33 |
| Parties | STATE OF MISSOURI AT THE RELATION OF WINIFRED REID, RELATOR, v. HON. PETER T. BARRETT, JUDGE OF DIVISION No. 3 OF THE CIRCUIT COURT OF ST. LOUIS COUNTY, MISSOURI, RESPONDENT. |
| Court | Missouri Court of Appeals |
Original proceeding in Prohibition.
PRELIMINARY WRIT QUASHED.
Robert C. Powell for respondent.
(1) Even though a petition merely states defectively a cause, of the nature of which the court has jurisdiction, prohibition is not a proper remedy to be applied for the settlement of pleadings; the fact that a demurrer may lie to a petition in a case where the court has jurisdiction of the general class of cases, to which the particular case attacked belongs, is no ground for the issuance of a writ of prohibition. State ex rel. v. Scarritt, 128 Mo. 331, 30 S.W. 1026, l.c. 1028 (2); State ex rel. v. Gates, 190 Mo. 540, 89 S.W. 881, l.c. 883 (1); State ex rel. v. McElhinney, 199 Mo. 67, 97 S.W. 159, l.c. 161 (2); State ex rel. v. McQuillin, 256 Mo. 693, 165 S.W. 713, l.c. 716 (6); State ex rel. v. McQuillin, 262 Mo. 256, 171 S.W. 72, l.c. 75 (5-c). (2) The petition filed in the St. Louis County Circuit Court is a bill in the nature of interpleader, distinguished from a bill of interpleader proper, in that additional relief is sought, among other things, cancellation of the notes and the deed of trust securing them. 33 C.J., sec. 6, p. 423; 15 R.C.L., sec. 16, p. 233; 4 Pomeroy, Eq. Juris (4 Ed.), sec. 1481, p. 3492; Matlack v. Kline, 280 Mo. 139, 216 S.W. 323, 327, 190 S.W. 408, 411; Stephenson v. Burdett, 56 W. Va. 109; Illingworth v. Rowe, 52 N.J. Eq. 360, 28 Atl. 456. (3) The circuit court of St. Louis county had and has jurisdiction of Winifred Reid in the case pending therein: (a) Because her so-called plea to the jurisdiction, regardless of attempted reservation therein, went too far and amounted to a general appearance. Bush v. Block, 193 Mo. App. 704, 187 S.W. 153, l.c. 157 (11); Hill v. Barton, 194 Mo. App. 325, 188 S.W. 1105, l.c. 1109. See also, Newcomb v. N.Y. Central & Hudson R.R. Co., 182 Mo. 687, l.c. 707, etc. (b) Because service of summons in that case upon relator herein, in the State of New Mexico, was authorized under and justified by the statutes and authorities of this State. Secs. 739 and 748, R.S. Mo., 1929; State ex rel. v. Barnett, 193 Mo. App. 36, l.c. 42, 180 S.W. 458, l.c. 460; Ludlow-Saylor Wire Co. v. Wollbrinck, 275 Mo. 339, l.c. 352, 205 S.W. 196, l.c. 198; McAlister v. Pritchard, 287 Mo. 494, 230 S.W. 66, l.c. 67; Farrar v. Am. Express Co., 219 S.W. 989, l.c. 992; Smith v. The Pilot Mining Co., 47 Mo. App. 409; Mitchner v. Holmes, 117 Mo. 185, l.c. 212, 22 S.W. 1070, l.c. 1077. (4) Under appropriate circumstances, a bill of interpleader, or a bill in the nature of interpleader, may be maintained; and, toward the establishment and enforcement of plaintiff's lawful right to maintain such bill, service may be had by publication or by personal service upon a nonresident. Freeland v. Wilson, 18 Mo. 380, and authorities cited under 3 (b), supra. (5) The right to pay a note in the jurisdiction in which it is due and payable according to its terms as expressed on its face, is property, and the assertion of such property right falls within the provisions of Sections 748 and 739, R.S. Mo. 1929, authorizing personal service on a defendant residing in another State. See authorities cited under 3 (b), supra. (6) The right to have cancelled a deed of trust on real estate in this State, upon payment into court of the money due on note which is payable in the county where such real estate is located and secured by such deed of trust, is a claim to real estate and the assertion of such right in the court having jurisdiction in such county falls within the provisions of Sections 748 and 739, R.S. Mo. 1929, authorizing personal service on a defendant residing in another State. See authorities cited under 3 (b), supra.
Watts & Gentry for relator.
(1) A motion for judgment like a demurrer admits only facts well pleaded — not legal conclusions. State ex rel. v. Shields, 237 Mo. 329; State ex rel. v. Buckner, 207 Mo. App. 48; State ex rel. v. McQuillen, 262 Mo. 256. The return admits all material facts alleged in the petition of relator for writ of prohibition, and sets up no additional material facts. The question here is purely one of law. (2) The attempted service upon this relator in the State of New Mexico of the summons issued by the Circuit Court of St. Louis County is wholly void and cannot give said circuit court any jurisdiction over the person of this relator. The only authority found in the statutes of this State for the service of a summons in a foreign State to bring a defendant within the jurisdiction of a circuit court in the State of Missouri is found in secs. 739 and 748, Revised Statutes Missouri, 1929. Sec. 739 enumerates the classes of cases in which orders of publication may be made and published in order to bring in defendants who reside in a foreign State, and section 748 provides, in substance, that in any of the cases mentioned in section 739 personal service may be had by delivering a copy of the petition and a copy of the summons to a defendant residing in such foreign State. Besides those two sections, there is no authority whatever for bringing in a defendant from a foreign State by personal service in such foreign State. The suit brought by Mary Ross Ewald is not a suit in partition, for divorce, for attachment, for the foreclosure of a mortgage or deed of trust, for the enforcement of any mechanic's lien, or any other lien, nor is it an action at law or in equity which has for its immediate object the enforcement or establishment of any lawful right, claim or demand to or against any real or personal property within the jurisdiction of the circuit court of St. Louis County; hence, the attempted service upon the relator in the State of New Mexico is void and conferred no jurisdiction upon the circuit court of St. Louis County. In no other class of cases than those above enumerated (which are set forth in sec. 739, R.S. Mo., 1929) is such service authorized. (a) We respectfully submit that the plea to the jurisdiction did not go too far and did not, therefore, amount to a general appearance. In his contention that the plea to the jurisdiction did go too far and amounted to a general appearance, counsel for respondent cites two cases, to-wit: Bush v. Block, 193 Mo. App. 704, 187 S.W. 153, and Hill v. Barton, 194 Mo. App. 325, 188 S.W. 1105.
This is an original proceeding in this court in which relator seeks to prohibit respondent, as Judge of Division No. 3 of the Circuit Court of St. Louis County, Missouri, from proceeding further in a suit entitled "Mary Ross Ewald, Relator, v. Daniel B. Carroll, and Josephine Thomson, Guardian of the person and estate of Daniel B. Carroll, non compos mentis; Mary Jane Thomson and Josephine Thomson as individuals; Rowena C. Clarkson; Mimbres Valley Bank, a corporation; Winifred Reid, and Charles Turner, Respondents," from making any further orders in said cause or rendering any judgment or decree therein.
For the purpose of clarity, we shall hereafter refer to the parties to said suit in the circuit court as plaintiff and defendants instead of relator and respondents as they are designated therein.
It appears from the record herein that Mary Ross Ewald filed a petition in the Circuit Court of St. Louis County, Missouri, wherein she alleges that she is the owner of real estate located in the City of Kirkwood, St. Louis County, Missouri, and describes the same; that said property is encumbered by a deed of trust, duly recorded, to secure a certain note of the same date, to-wit, June 6, 1929, for $7500, but, before the institution of said suit, said note had been reduced to $7000. Said petition further alleges that said note had been extended on one or more occasions; that the last extension had expired and the note was due and unpaid; that, on June 6, 1935, said principal note, in the balance of $7000, and the deed of trust securing same were again extended for a period of one year by virtue of the fact that on said date said plaintiff executed and delivered to the then holder of said principal note and deed of trust two semiannual interest notes numbers 1 and 2, each in the sum of $210, due and payable six and twelve months after their date, respectively, both of said last extension interest notes and said principal note, according to their terms, being due and payable at the office of James D. Clarkson in the City of Kirkwood, Missouri; that said last extension interest note number 1, due December 6, 1935, has been paid.
The petition of plaintiff in said suit further alleges that defendant Daniel B. Carroll was duly adjudged a person of unsound mind; and that defendant Josephine Thomson was duly appointed as guardian of his person and estate and has demanded payment to her, as said guardian, of the balance of the proceeds of said note; that Josephine Thomson and defendant Mary Jane Thomson, as individuals, claim some interest in the proceeds of said note, the exact nature of which claim is unknown to said plaintiff; that said last extension interest note number 2 in the sum of $210 is in the possession of defendant Rowena C. Clarkson, a resident of City of Kirkwood, St. Louis County, Missouri, who demands payment thereof and claims to have some interest in the proceeds of said note, the exact nature of which claim is unknown to said plaintiff. It is conceded that this last-mentioned interest note has been paid by the consent of the parties.
The petition in said suit further alleges that defendant Mimbres Valley Bank, a corporation, of Deming, New Mexico, has made demand for payment of the balance of said principal note in the sum of $7000, with the information that said note has been left with said bank for payment; that said Mimbres Valley Bank...
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