State ex rel. Thompson v. Terte

• Decision Date: 08 December 1947
• Docket Number: 40241
• Parties: State ex rel. Guy A. Thompson, Trustee in Bankruptcy of New Orleans, Texas & Mexico Railway Company, a Corporation, and Guy A. Thompson, Trustee in Bankruptcy of San Antonio, Uvalde & Gulf Railroad Company, a Corporation, Relators, v. Ben Terte, Judge of Division No. 9 of the Circuit Court of Jackson County, Missouri, at Kansas City
• Court: Missouri Supreme Court

207 S.W.2d 487

357 Mo. 229

State ex rel. Guy A. Thompson, Trustee in Bankruptcy of New Orleans, Texas & Mexico Railway Company, a Corporation, and Guy A. Thompson, Trustee in Bankruptcy of San Antonio, Uvalde & Gulf Railroad Company, a Corporation, Relators, v. Ben Terte, Judge of Division No. 9 of the Circuit Court of Jackson County, Missouri, at Kansas City

No. 40241

Supreme Court of Missouri

December 8, 1947

Rehearing Denied January 12, 1948.

Original Proceeding in Prohibition.

Rule made absolute in part and discharged in part.

Leslie A. Welch, Richard H. Beeson, and David P. Dabbs for relators.

(1) When the second (designated third) amended petition was attempted to be filed in the Circuit Court of Jackson County Missouri, said cause was pending in the Supreme Court of Missouri on appeal by the plaintiff in said cause from the judgment rendered by Judge Ridge February 14, 1945 dismissing these relators as defendants in said cause. Therefore, said circuit court had no jurisdiction to grant leave to file said petition, the clerk had no jurisdiction to issue process thereon, and the purported service and return thereon by the sheriff are void and conferred no jurisdiction over relators. State ex rel. Patton v. Gates, 143 Mo. 63, 44 S.W. 739; Donnell v. Wright, 199 Mo. 304 97 S.W. 928; State ex rel. Powers v. Rassieur, 190 S.W. 915; Burgess v. Donoghue, 90 Mo. 299, 2 S.W. 303; Ladd v. Couzins, 35 Mo. 513; Brill v. Meek, 20 Mo. 358; State ex rel. Manning v. Hughes, 351 Mo. 780, 174 S.W.2d 200; Reed v. Bright, 232 Mo. 399, 134 S.W. 653. (2) The judgment dismissing relators as defendants in said cause, rendered by Judge Ridge February 14, 1945, was an appealable judgment. Graves v. Elliott, 197 S.W.2d 977. (3) The circuit court was divested of jurisdiction regardless of the fact the appeal may have been premature. Case v. Smith, 215 Mo.App. 621, 257 S.W. 148; State ex rel. Callahan v. Hess, 348 Mo. 388, 153 S.W.2d 713; Hays v. Dow, 237 Mo.App. 1, 166 S.W.2d 309; Houser v. Andersch, 61 Mo.App. 15. (4) The trial and prosecution of said cause in the Circuit Court of Jackson County, Missouri, against relators as defendants will constitute an undue and unlawful burden on interstate commerce, in violation of Section 8, Article I, of the Constitution of the United States, therefore, a permanent writ of prohibition should issue herein. U.S. Constitution, Art. I, Sec. 8; Denver & Rio Grande Western Railroad Co. v. Terte, 284 U.S. 284, 52 S.Ct. 152, 76 L.Ed. 295; Michigan Central R. Co. v. Mix, 278 U.S. 492, 49 S.Ct. 207, 73 L.Ed. 470; Davis, Director General of Railroads, v. Farmers Cooperative Equity Co., 262 U.S. 312, 43 S.Ct. 556, 67 L.Ed. 996; Atchison, Topeka & Santa Fe R. Co. v. Wells, 265 U.S. 101, 44 S.Ct. 469, 68 L.Ed. 928. (5) There is no venue over either of relators in the Circuit Court of Jackson County, Missouri, because no cause of action is alleged against Guy A. Thompson, Trustee of Missouri Pacific Railroad Company, a Missouri corporation, and it appears from the face of the second (called third) amended petition of plaintiff in said cause that the line of railroad on which Mr. Tharp claims to have been injured was not operated by Trustee of Missouri Pacific Railroad Company. Sec. 205, Title 11, U.S. Code. (6) Fact service of summons was made on relators in City of Saint Louis, Missouri, establishes fact neither of relators had an office or agent in Jackson County, Missouri. State ex rel. Macon Creamery Co. v. Mix, 7 S.W.2d 290. (7) Allegations of conclusions of joint liability of resident and non-resident defendants will not support venue. Joint liability must appear from facts alleged. Graham v. Ringo, 67 Mo. 325; State ex rel. Atkinson Paving Co. v. Aronson, 138 S.W.2d 1 (4). (8) The order and judgment rendered by Judge Albert A. Ridge, February 14, 1945, dismissing relators as defendants in said cause, is final and binding and res judicata. Baldwin v. Iowa State Traveling Men's Assn., 283 U.S. 522, 51 S.Ct. 517, 75 L.Ed. 1244; Shay v. New York Life Ins. Co., 192 S.W.2d 421 (5); Baisley v. Baisley, 113 Mo. 544, 21 S.W. 29; Ellis v. Starr Piano Co., 49 S.W.2d 1078; American Surety Co. v. Baldwin, 287 U.S. 156, 53 S.Ct. 98, 77 L.Ed. 231. (9) The judgment rendered by Judge Ridge February 14, 1945, was res judicata, notwithstanding the fact it was pending on appeal at the time of Judge Terte's ruling. Bobb v. Taylor, 193 S.W. 800; Reed v. Allen, 286 U.S. 191, 52 S.Ct. 532.

Clarence C. Chilcott for respondent.

(1) In the present case there were three defendants and a joint liability was asserted against them. Motions to dismiss were only sustained as to two of the defendants, leaving the case undetermined as against the third defendant and pending in the Circuit Court of Jackson County, Missouri. Therefore under Section 126 of the General Code of Civil Procedure and Section 1243, R.S. 1939, no appeal was allowable, and the Supreme Court obtained no jurisdiction of the cause and only such jurisdiction of the appeal as would enable it to dismiss the same to clear its records. Hopkins v. Kurn, 350 Mo. 41, 171 S.W.2d 625; McCoy v. Simpson, 344 Mo. 215, 125 S.W.2d 833; Hays v. Dow, 237 Mo.App. 1, 166 S.W.2d 309; Rock Island Implement Co. v. Marr, 168 Mo. 252, 67 S.W.2d 586; Ford v. Ford, 24 S.W.2d 990; Cox v. Frank L. Schaab Stove & Furn. Co., 332 Mo. 492, 58 S.W.2d 700; Hodges v. Brooks, 122 S.W.2d 383; Stevens v. D. M. Oberman Mfg. Co., 334 Mo. 1078, 70 S.W.2d 899; Pence v. K.C. Laundry Service Co., 322 Mo. 930, 59 S.W.2d 633; Sec. 126, General Code of Civil Procedure, Laws 1943, p. 390; Sec. 1184, R.S. 1939; S. S. Kresge v. Shankman, 194 S.W.2d 717; Webster v. Sterling Finance Co., 351 Mo. 754, 165 S.W.2d 688; Boyd v. Logan Jones Dry Goods Co., 74 S.W.2d 598; State ex rel. May Dept. Stores v. Haid, 327 Mo. 567, 38 S.W.2d 44; Kendrick v. Sheffield Steel Corp., 166 S.W.2d 590; State ex rel. C., B. & Q. v. Bland, 189 Mo. 28, 88 S.W. 28; Lucitt v. Toohey's Estate, 338 Mo. 343, 89 S.W.2d 662; McCormack v. Dunn, 106 S.W.2d 933; Cramer v. Barmon, 193 Mo. 327, 91 S.W. 1038; Finley v. Smith, 353 Mo. 465, 178 S.W.2d 326. (2) A joint cause of action was alleged against the defendant as trustee of the "Gulf Coast Lines" and the Missouri Pacific Railroad Company, because: It was alleged in the petition that the railroads operated by defendant under the style of "Gulf Coast Lines" and "Missouri Pacific Lines" (Missouri Pacific Railroad Company) were operated in complete economic unity. May Dept. Stores Co. v. Union Elec. L. & P. Co., 107 S.W.2d 41; Commerce Trust Co. v. Woodbury, 77 F.2d 478; Wabash Ry. Co. v. American Refrigerator Transit Co., 7 F.2d 335, certiorari denied 46 S.Ct. 207, 270 U.S. 643, 70 L.Ed. 776; Fish v. East, 114 F.2d 177; Page v. Arkansas Natural Gas Corp., 53 F.2d 27; 51 C.J. 1089; Santa Barbara, 299 F. 147, certiorari denied 45 S.Ct. 95, 266 U.S. 612, 69 L.Ed. 467; Pennsylvania Ry. Co. v. Jones, 15 S.Ct. 136, 155 U.S. 333, 39 L.Ed. 176; New Colonial Ice Co. v. Helvering, 54 S.Ct. 788, 292 U.S. 435, 78 L.Ed. 1348; N.Y. & M.L. Ry. Co. v. Winans, 58 U.S. 30, 17 How. 30, 15 L.Ed. 27; C., M. & St. P. Ry. Co. v. Minn. Civil & Commerce Assn., 247 U.S. 490, 38 S.Ct. 553, 62 L.Ed. 1229; United States v. Lehigh Valley Ry. Co., 254 U.S. 255, 41 S.Ct. 104, 65 L.Ed. 253; Centmont Corp v. Marsch, 68 F.2d 460, affirming Central Vermont Ry. v. Southern N.E. Ry. Corp., 1 F.Supp. 1004, certiorari denied 54 S.Ct. 530, 291 U.S. 680, 78 L.Ed. 1068. (3) Relator as trustee of the "Gulf Coast Lines" succeeded to the liabilities as well as the rights of the railroads composing the "Gulf Coast Lines" the charters of which were obtained for the use and benefit of the public, and the charter rights could not be surrendered to another so as to enable the "Gulf Coast Lines" to escape liability in the performance of a public duty. Hulen v. Wheelock, 318 Mo. 502, 300 S.W. 479; Booth v. St. Louis, I.M. & S. Ry. Co., 217 Mo. 710, 117 S.W. 1095; State ex rel. Bostian v. Ridge, 188 S.W.2d 941; Kirkland v. Charleston & W.C. Ry. Co., 60 S.E. 68; Parr v. Spartanburg U. & C. Ry. Co., 20 S.E. 1009; C., B. & Q.R. Co. v. Willard, 220 U.S. 413, 31 S.Ct. 460, 55 L.Ed. 521; Hahs v. Cape Girardeau & C. Ry. Co., 147 Mo.App. 262, 126 S.W. 524; Moorshead v. United Rys. Co., 119 Mo.App. 541, 96 S.W. 261; Gambel v. Daugherty, 71 Mo. 599; Crawford v. C., R.I. & P. Ry. Co., 171 Mo. 75, 66 S.W. 350; Callahan v. Huhlman, 339 Mo. 634, 98 S.W.2d 704; Cole v. Parker Washington, 207 S.W. 749; State ex rel. May Dept. Stores v. Haid, 327 Mo. 567, 38 S.W.2d 44. (4) The relators by their laches in not applying for a writ of prohibition when respondent filed his amended petition again making the relators parties defendant and in filing motions to dismiss and relitigating the same issues, waived the alleged question of pending appeal. Trundle v. Providence-Washington Ins. Co., 54 Mo.App. 188; Ess v. Griffith, 128 Mo. 150, 30 S.W. 343; Levine v. Marchisic, 270 S.W. 643; State ex rel. Knisley v. Board of Trustees, 186 S.W. 680; Padgett v. Smith, 205 Mo. 122, 103 S.W. 942. (5) Under Section 847.17 of the Civil Code, R.S. Ann., 1939, Laws of Missouri, 1943, page 361, the court could drop or add parties at any stage of the proceedings. Relator waived all question of the jurisdiction of his person by filing a general denial, and any error in Judge Ridge's order dismissing the relator in his several capacities was subject to subsequent correction by respondent. Landau v. Fred Schmidt Contracting Co., 179 S.W.2d 138; Levine v. Marchisic, 270 S.W. 643; Bowen v. Buckner, 157 S.W. 829; Kinsella v. Kinsella, 183 S.W.2d 905; Boehmke v. Traction Co., 88 Ohio St. 156, 102 N.E. 700; Haney v. Thompson, 98 S.W.2d 639; Green v. Strother, 212 S.W. 399, 201 Mo.App. 418; Reed, Murdock & Co. v. Mercurio, 91...