State ex rel. Snow Steam Pump Works v. Homer

Citation155 S.W. 405,249 Mo. 58
Decision Date28 March 1913
CourtUnited States State Supreme Court of Missouri

Writ denied.

Nagel & Kirby for relators.

(1) The filing of a petition for removal to a Federal court does not amount to a general appearance. Goldey v. Morning News, 156 U.S. 518; Railroad v. Brow, 164 U.S 271; Conley v. Alkali Works, 190 U.S. 406; Courtney v. Pradt, 196 U.S. 89; Clark v Wells, 203 U.S. 164; Mutual Accident Co. v Davis, 213 U.S. 245. (2) It appears from the record in the case below that respondent has no jurisdiction over relators and was without authority to compel them to plead. Crawford v. Railroad, 171 Mo. 74; State ex rel v. Gibson, 187 Mo. 536. (3) The purpose of the statutes relating to service of process upon foreign corporations is to protect citizens of Missouri in controversies arising out of business done in this State, and such statutes do not authorize suits here by one foreign corporation against another foreign corporation upon a cause of action arising wholly without this State. Railroad v. Carr, 76 Ala. 388; Lumber Co. v. Smith Co., 145 Ala. 317; Sawyer v. Ins. Co., 46 Vt. 697; Mutual Reserve Assn. v. Phelps, 190 U.S. 147; McNichol v. Mercantile Agency, 74 Mo. 457; Mut. Accident Co. v. Davis, 213 U.S. 545; Newcomb v. Railroad, 182 Mo. 687; Rehm v. German Ins. Institution, 125 Ind. 135; Hardware Co. v. J. I. Case Co., 77 Neb. 847. (4) When a foreign corporation does business in a State without complying with its laws, there is no express consent to service therein, and the implied consent to service, if any, arising from the fact of doing business in the State, extends only to controversies arising out of such business. Ins. Co. v. McDonough, 204 U.S. 8; Hunter v. Ins. Co., 218 U.S. 573. (5) To imply consent to service in Missouri, in a suit by a non-resident corporation, involving transactions had outside of Missouri, would be an unreasonable inference of fact, and to take jurisdiction based on such an inference would be to deny that due process of law which is guaranteed by the Constitution of this State and of the United States. Ins. Co. v. McDonough, 204 U.S. 8.

Edward D'Arcy and W. M. Williams for respondent.

(1) This court has decided that the circuit court of the city of St. Louis acquired jurisdiction of the defendants in the suit of Texas Portland Cement Company v. International Steam Pump Company et al., by the service of process upon said defendants within this State, and that the return of service is sufficient and is conclusive upon all the parties. State ex rel. v. Sale, 232 Mo. 166. (2) The lapse of the April term, 1910, without further action by the circuit court than sustaining defendants' motions to quash the returns, and overruling plaintiff's motion to set aside said order, did not deprive the circuit court of jurisdiction in said cause or prevent further proceedings therein. No final judgment discharging defendants was entered at the April term, 1910. The cause was still pending in said court after the orders sustaining the motion to quash, and overruling the motion to set aside said order on May 27, 1911. Collier v. Lead Co., 208 Mo. 274; Winn v. Carter, 43 S.W. 436; Oland v. Insurance Co., 14 A. 669; Persinger v. Tinkel, 51 N.W. 299; Brown v. Rice, 46 N.W. 489. Even if the circuit court had, by a final judgment at the April term, 1910, completely disposed of the case and could not thereafter, of its own motion, entertain further jurisdiction thereof, still this court could, and by its mandate did, in the exercise of its supervisory control, command said court to hear and determine the same, and the circuit court, notwithstanding the lapse of said term, was authorized, by virtue of said mandate, to proceed with said cause. State ex rel. v. Patterson, 207 Mo. 129; State ex rel. v. Gibson, 187 Mo. 536; State ex rel. v. Phillips, 96 Mo. 570; State ex rel. v. Smith, 172 Mo. 618; State ex rel. v. Lewis, 71 Mo. 170. (3) Mandamus awarded by this court was against the office, and not against Judge Sale personally. The legal effect of the writ of mandamus awarded by this court on the last secular day of Judge Sale's official term was to authorize and require the circuit court of the city of St. Louis, and not the individual who happened to be judge of the court at that time, to hear and determine said cause. Ex parte Parker, 131 U.S. 221; People v. Bacon, 18 Mich. 247; Thompson v. United States, 103 U.S. 480; State v. Puckett, 7 Lea (Tenn.), 709; People ex rel. v. Treasurer, 37 Mich. 351; People ex rel. v. Supervisor, 100 Ill. 332; People v. McConnell, 146 Ill. 532; 13 Ency. Pl. & Pr. 663, n. 5. Respondent, as the successor of Judge Sale, was authorized to proceed with all cases pending and undisposed of in said court in the same manner as his predecessor could have done; and he could waive the service of a mandamus upon him personally, and has done so by making the order requiring the relators herein to plead, as required by the writ of mandamus, and by demurring to the petition herein. People v. Bacon, 18 Mich. 247; State ex rel. v. Schmitz, 36 Mo.App. 550; Edwards v. United States, 103 U.S. 471; People v. Cairo, 50 Ill. 154; State v. Anderson, 170 Ind. 540. (4) Where the action is transitory, the suit may be brought wherever the defendant may be found. Mason v. Warner, 31 Mo. 508; Bryant v. McClure, 44 Mo.App. 553; Barrell v. Benjamin, 12 Mass. 354; Moystyn v. Fabrigas, 1 Smith's Leading Cases (8 Ed.), 562; 11 Cyc. 663. The courts of this State are open to a non-resident plaintiff, and a foreign corporation may be sued here if the proper service can be had upon it. R.S. 1909, secs. 1751 and 3956; Barrow S. S. Co. v. Kane, 170 U.S. 100; Johnson v. Ins. Co., 132 Mass. 432; Abbeyville Co. v. Western Co., 85 Am. St. 922; McNichol v. Agency, 74 Mo. 457; Newcomb v. Railroad, 182 Mo. 687; Mohr v. Insurance Co., 12 F. 474.

GRAVES, J. Woodson, J., not sitting.


In Banc.



-- A short statement will suffice in this case. In November, 1909, the Texas Portland Cement Company, a corporation of West Virginia, sued the International Steam Pump Company, a corporation of New Jersey, and the Snow Steam Pump Works, a corporation of New York, in the circuit court of the city of St. Louis. [State ex rel. v. Sale, 232 Mo. 166, 132 S.W. 1119.]

In this case pending in the said court the defendants specially appeared and moved to quash the service. These motions were sustained May 26, 1910, and on the next day the plaintiff in that case filed a motion to compel the defendants in that case to plead to its petition. This motion the court overruled, and on June 28, 1910, the plaintiff in the circuit court case, as relator in this court, applied for a writ of mandamus to compel the Hon. Moses Sale, then judge of the circuit court, to proceed with the case. Our alternative writ issued, to which Judge Sale made his return. The further situation of the mandamus case is thus outlined in State ex rel. v. Sale, 232 Mo. 166, 132 S.W. 1119, thus:

"Relator filed a motion for judgment upon the pleadings, so that the case stands here upon the admissions made in the return. Respondent Sale seeks the judgment of this court upon the merits, and to that end there is presented the sole question of the sufficiency of these returns. Other questions are discussed in the briefs, but were waived in the oral argument at request of respondent, who deemed the question presented upon the returns as a very important one to the circuit court of the city of St. Louis, where many such suits are pending and others being continually brought. This outlines therefore the sole issue in the case."

In this condition the mandamus case in this court was submitted, and we then determined that the returns upon the summons in the circuit court showed a valid service of process, and our peremptory writ of mandamus was awarded directing the circuit court to proceed with the case. Pursuant to this mandate the circuit court assumed jurisdiction and was proceeding with the case, when the defendants in the circuit court applied for and obtained a preliminary rule in prohibition, so that the real question is whether such rule should be made absolute.

As a further statement a few preliminary facts should be made clear. In the mandamus case the same lawyers who represented the defendants in the circuit court appeared and argued the case for Judge Sale in this court. Not only so but whilst the mandamus case was pending in this court Judge Sale telegraphed that he desired the case determined upon its merits so that the court might know whether such returns were good, and to that end he waived all other questions in his return. To this request of Judge Sale the counsel for Judge Sale, now the counsel for the relators in the present case, consented in open court. It was under these circumstances that we determined the mandamus case, with the result above indicated.

I. For several reasons we think this writ of prohibition should be denied. It is true that in the mandamus case we only considered one question. It is true that we did not then discuss the question as to whether a writ of mandamus would properly lie to compel the court to proceed in the circuit court case under all the facts disclosed and admitted. It is true that the mandamus will not issue to compel a court to decide a case in any certain way. It is further true that mandamus cannot be invoked to compel the doing of a thing which has already been done. But the writ has been granted to compel the undoing of a thing wrongly and improperly done, which thing precluded a determination of a case upon its merits. [State ex rel. v. Phillips, 97 Mo 331.] Nor will mandamus usually issue...

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