State ex rel. Richardson v. Mueller

• Decision Date: 04 February 1936
• Parties: STATE OF MISSOURI, AT THE RELATION OF JAMES K. RICHARDSON AND ROBERT B. RICHARDSON, RELATORS, v. HONORABLE FRED E. MUELLER, JUDGE OF DIVISION 3, CIRCUIT COURT OF COUNTY OF ST. LOUIS, STATE OF MISSOURI, C. KENNETH THIES AND JACOB M. LASHLY, RESPONDENTS
• Court: Missouri Court of Appeals

90 S.W.2d 171

230 Mo.App. 962

STATE OF MISSOURI, AT THE RELATION OF JAMES K. RICHARDSON AND ROBERT B. RICHARDSON, RELATORS, v. HONORABLE FRED E. MUELLER, JUDGE OF DIVISION 3, CIRCUIT COURT OF COUNTY OF ST. LOUIS, STATE OF MISSOURI, C. KENNETH THIES AND JACOB M. LASHLY, RESPONDENTS

Court of Appeals of Missouri, St. Louis

February 4, 1936

Motion for rehearing overruled February 18, 1936.

PEREMPTORY WRIT OF PROHIBITION DENIED.

Peremptory writ denied.

Lashly Lashly & Miller for respondents.

The property against which resident attorney-respondents claim a subsisting attorneys' lien is within the jurisdiction of the Circuit Court of St. Louis County, Missouri; therefore substituted personal service of process issuing out of said suit, had upon the nonresident relators in the State of Michigan is binding and effective, and confers jurisdiction upon said court to adjudge and enforce said lien against the property. Oishei v. Penn. Ry. Co. et al., 102 N.Y.S 368, 117 A.D. 110, 85 N.E. 1113, 191 N.Y. 554 (1907); McKennel v. Payne et al., 189 N.Y.S. 7, 197 A.D. 340 (1921); Oldmixon v. Penn. Ry. Co., 1 F. Sup. 101 (1932; Dist. Ct. E. D. New York); Cocker v. New York Ry. Co., 253 F. 676 (1918; Dist. Ct. S.D.N.Y.); Western Assurance Co. v. Walden et al., 238 Mo. 49, 141 S.W. 595 (1911); Wyeth Hardware Co. v. Lang & Co., 127 Mo. 242, 29 S.W. 1010 (1895); Farrar v. American Express Co., 219 S.W. 989 (1920; Mo. App.); ^[1] Burg v. Knox, 67 S.W.2d 96 (1933; Mo.); ^[2] McDonnell et al. v. Hawkeye Life Ins. Co. , 64 S.W.2d 748 (1933; Mo. App.); ^[3] Moseley v. Victor Life Ins. Co., 226 Mo.App. 566, 45 S.W.2d 119 (1932); Western Stoneware Co. v. Pike County et al., 172 Mo.App. 696, 155 S.W. 1083 (1913); Butcher v. Butler et al., 134 Mo.App. 61, 114 S.W. 564 (1908); State v. Pate, 268 Mo. 431, 188 S.W. 139 (1916); In re North Missouri Trust Co., 39 S.W.2d 412 (1931; Mo. App.); ^[4] Bambrick v. Bambrick Const. Co., 152 Mo.App. 69, 132 S.W. 322 (1910); Bogert on Trusts (1921), p. 16; 28 C. J., Sec. 171, p. 129.

Cobbs & Logan for relators.

(1) The Circuit Court of the County of St. Louis has acquired no jurisdiction over either the persons or the property of the relators, held by the Sun Life Assurance Company of Canada in the Dominion of Canada. The relators, nonresidents of the State of Missouri, have never been personally served within this State, nor have they voluntarily entered their appearance in the cause now pending in the Circuit Court of the County of St. Louis. Jurisdiction in the cause in the lower court is purported to have been acquired over funds belonging to relators, held on deposit in the Dominion of Canada by the Sun Life Assurance Company of Canada under certificates of deposit executed, payable and performable in the Dominion of Canada, by virtue of service had on relators in Wayne County, Michigan, under and pursuant to Sections 748 and 739, Revised Statutes of Missouri, 1929. (a) Service had under said statutes will not sustain a personal judgment against relators. Jones v. The Brewing Assn., 188 S.W. 82; Investment Co. v. The Catering Co., 175 Mo.App. 668, affirmed 267 Mo. 340, 184 S.W. 467; Moss v. Fitch, 212 Mo. 484. (b) Service had pursuant to said statutes is of no effect unless relators have "property within the jurisdiction of the court." Section 739, R. S. Mo. 1929; Pennoyer v. Neff, 95 U.S. 714, l. c. 723, 24 L.Ed. 565, l. c. 569; State ex rel. Bowling Green Trust Co., et al. v. Barnett, 245 Mo. 99, l. c. 119-121; Carr v. Lewis Coal Co., 96 Mo. 149, l. c. 155. (c) Relators have no "property within the jurisdiction of the court," (1) Because the Sun Life Assurance Company of Canada, a foreign insurance corporation, has been served by service had upon the Superintendent of Insurance of the State of Missouri and has appeared generally in the cause pending in the St. Louis County Circuit Court. Palmer v. Bank of Sturgeon, 281 Mo. 72, 218 S.W. 873; State ex rel. Bowling Green Trust Co. et al. v. Barnett, 245 Mo. 99, l. c. 119. (2) Or, because the Sun Life Assurance Company of Canada, a foreign insurance corporation, has qualified to do business in the State of Missouri. State ex rel. American Central Life Ins. Co. v. Landwehr, 300 S.W. 294, l. c. 298; Douglass v. Phenix Ins. Co. of Brooklyn, 138 N.Y. 209, 38 N.E. 938, l. c. 940; Everett v. Walker (Connecticut Mutual Life Ins. Co., Garnishee), 36 P. 616, l. c. 617. (2) This case is not controlled by and is clearly distinguishable from rulings of the appellate courts of this State to the effect that a resident of the State of Missouri may attach and garnish funds in the hands of a foreign business corporation authorized to engage in business in Missouri and owing to a non-resident creditor of said corporation, which creditor is alleged to be a debtor of the Missouri citizen instituting the proceeding. State ex rel. American Central Life Ins. Co. v. Landwehr, 300 S.W. 294; Wyeth Hdwe. Co. v. Lang & Co., 127 Mo. 242, l. c. 246; Farrar v. American Express Co., et al., 219 S.W. 989, l. c. 994; German v. Universal Oil Products Co. (Skelly Oil Co., Garnishee), 6 F.Supp. 53, l. c. 57.

Carter & Jones, amicus curiae.

(1) Respondents, in their brief, do not dispute relators' contention that the sole question for the determination of this court is whether or not relators have "any real or personal property within the jurisdiction of the court," so as to justify the service purported to have been had on relators in the State of Michigan pursuant to Sections 739 and 748, Revised Statutes of Missouri, 1929. Respondents' Brief, page 4. (2) Respondents do not controvert the following contentions of relators: (a) That the deposits in question, represented by the certificates of deposit issued to relators in the Dominion of Canada and held by them in the State of Michigan, are physically located in the Province of Quebec, Dominion of Canada; (b) That the deposits are not within the jurisdiction of the courts of the State of Missouri, because the Sun Life Assurance Company of Canada has been served as a defendant in the cause pending in the lower court by service directed to and served upon the Superintendent of Insurance of the State of Missouri and has appeared generally therein in its own behalf and in its own defense; or (c) That the situs of these deposits is not within the State of Missouri by virtue of the fact that the Sun Life Assurance Company of Canada is qualified to engage in business in the State of Missouri, but is in the Dominion of Canada. (3) Respondents predicate their argument upon the basis that they are in this proceeding foreclosing a prior subsisting attorney's lien, created under and by virtue of the statutes of the State of Missouri. Respondents rely chiefly upon the cases of Oishei v. Pennsylvania Ry. Co. et al., 115 A.D. 110, 102 N.Y.S. 368, affirmed 191 N.Y. 554, 85 N.E. 1113, and McKennel v. Payne, Director General of Railroads et al., 197 A.D. 340, 189 N.Y.S. 7, suggesting that these cases "should control the result reached by this court in the instant cause." Respondents' Brief, page 20. (4) The cases relied upon by respondents are not controlling and are distinguishable from the case at Bar, and the argument based thereon does not tend to prove the admitted question before this court for determination, namely: Have the relators property within the jurisdiction of the courts of Missouri? Note: The Oishei case and the McKennel case both related to the enforcement of a valid and subsisting attorney's lien. The right to enforce such a lien does not prove or tend to prove that there was property of the relators within the jurisdiction of the courts of Missouri. It is essential, before discussing the right to enforce a lien, to establish the lien itself. (5) The record of this cause does not set forth facts upon which it may be ruled, as a matter of law, that respondents acquired a lien under the Attorney's Lien Statutes of the State of Missouri. Section 11717, R. S. Mo. 1929; Citizens National Bank v. Culver, 54 N.H. 327, 20 Am. Rep. 134; Plummer et al. v. Great Northern Ry. Co., 60 Wash. 214, 110 P. 989; 31 L.R.A. (N. S.) 1215 (Note on right of attorney, under local statute, to a lien upon money in the hands of adverse party to a suit or proceeding in another state).

SUTTON, C. Hostetter, P. J., and Becker and McCullen, JJ., concur.

OPINION

SUTTON, C.

--The relators, James K. Richardson and Robert B. Richardson, on May 10, 1935, filed in this court their petition praying the issuance of a writ of prohibition, restraining respondents, the Honorable Fred E. Mueller, Judge of the Circuit Court of St. Louis County, C. Kenneth Thies, and Jacob M. Lashly, from taking any further action or asserting any jurisdiction, in so far as relators or their property is concerned, in a suit brought by respondents C. Kenneth Thies and Jacob M. Lashly, as plaintiffs, against the Sun Life Assurance Company of Canada, Stanley P. Richardson, James K. Richardson, and Robert B. Richardson, as defendants, in said circuit court, before said respondent the Honorable Fred E. Mueller. Upon the filing of said petition a preliminary rule in prohibition issued. The parties have submitted the case here as upon a demurrer to the petition on the ground that the petition fails to state facts sufficient to show that the relators are entitled to prohibition.

The facts as disclosed by the petition are substantially as follows:

The relators, James K. Richardson and Robert B. Richardson, who are nonresidents of the State of Missouri, and one Stanley P Richardson, who is a brother of relators and a resident of St. Louis County, Missouri, upon the death of their father, asserted a claim against the Sun Life Assurance Company for the proceeds of certain insurance policies covering the life of the...