State ex rel. Tighe v. Brown

• Citation: 23 S.W.2d 1092
• Decision Date: 06 January 1930
• Docket Number: No. 16843.,16843.
• Parties: STATE EX REL. MARY TIGHE, RELATOR, v. DARIUS A. BROWN, JUDGE, ETC., RESPONDENT.
• Court: Court of Appeal of Missouri (US)

23 S.W.2d 1092

STATE EX REL. MARY TIGHE, RELATOR, v. DARIUS A. BROWN, JUDGE, ETC., RESPONDENT.

No. 16843.

Kansas City Court of Appeals. Missouri.

January 6, 1930.

Original proceeding by State on the relation of Mary Tighe for writ of mandamus to Darius A. Brown, Judge of Circuit Court of Jackson County.

PEREMPTORY WRIT DENIED.

Cowgill & Popham for respondent.

Johnson, Lucas, Landon & Graves for relatrix.

BARNETT, C.

This suit was instituted by an application for a writ of mandamus originally filed in this court. The whole case is on paper. Relator filed an application for a writ of mandamus, respondent filed his return, and relator filed a demurrer. The facts alleged are that the relator brought suit on a policy of insurance in the circuit court of Jackson county, Missouri, and filed the petition with the circuit clerk at Independence. The defendant in that cause, Midwest Life and Casualty Association of Topeka, Kansas, entered a special appearance and filed a motion to quash the return upon the summons. While this motion was pending a stipulation, signed by the attorneys for plaintiff and defendant, was filed which, omitting caption and signatures, is as follows:

"The undersigned attorneys for plaintiff and defendant hereby stipulate that with the consent of the court this case may be removed and transferred to the circuit court of Jackson county, Missouri, at Kansas City."

Pursuant to this stipulation the cause was transferred and was assigned to division eight of the circuit court of Jackson county at Kansas City, and thereafter the motion to quash the sheriff's return was sustained. The plaintiff then sued out an alias summons which was served upon the commissioner of insurance of Missouri. The defendant then filed a motion to quash the return upon this summons. This motion was filed with the circuit court of Jackson county at Kansas City, and was sustained. The plaintiff then filed a motion to compel defendant to plead, answer or demur to plaintiff's petition on the ground that defendant had entered its appearance in the cause by stipulation, but had nevertheless refused to plead. The motion was overruled. It is alleged that the circuit judge has refused to take jurisdiction of the suit and has refused to compel the defendant to plead, answer, or demur to the petition.

The prayer of the petition for mandamus is that the Honorable DARIUS A. BROWN, judge of the circuit court of Jackson county, Missouri, at Kansas City, be commanded to set aside the order overruling the motion to require the defendant in said cause to plead, answer, or demur, and that respondent be commanded to require defendant to plead, answer, or demur, and that respondent proceed to hear and determine same according to law. It is not alleged that the court has refused to respond to any attempt of relator to invoke the jurisdiction of the court, except that it has refused to sustain the motion to require defendant to plead, answer, or demur.

OPINION.

The question presented by the briefs is whether or not the stipulation by which the defendant insurance company consented that the case of Tighe v. Midwest Life and Casualty Association of Topeka, Kansas, be transferred from the circuit court of Jackson county, sitting at Independence, to the circuit court of that county sitting at Kansas City constituted a general appearance. Up to the time that this stipulation was filed the insurance company was not in court so far as is shown by this record. It does not appear that there was any error in quashing the return on the summons. The appearance for the sole purpose of filing a motion to quash the summons was a special appearance; but a defendant may appear specially and thereafter appear generally. It is said that any writing filed with the papers in a cause, not going to the jurisdiction of the court, which asks or consents to action by the court in the cause, constitutes a general appearance. [4 C.J., 1333-4.] Thus, it has been held that a stipulation for a continuance constitutes a general appearance. [Roberts v. Meek, 296 S.W. 193.] A stipulation to set a cause down for trial on a day certain has been held to be a general appearance. [Markey v. Railroad, 185 Mo. 385.] An application for a change of venue has been held to be a general appearance. [Julian v. Kansas City Star Co., 209 Mo. 35.] In the last cited case there was a dissenting opinion by Judge GRAVES with whom Judge LAMM concurred, in which it was held that an application for change of venue constituted a general appearance when it was not preceded by a special plea to the jurisdiction which was still pending; but that the application for change of venue in that case did not amount to a special appearance; because a special appearance to question the jurisdiction of the court over the person of defendant had already been filed and was still pending, and that the defendant had a right to have the motion passed on by an unbiased judge. In a majority opinion by Judge GANTT it was held that when the defendant filed its application for a change of venue, it entered its general appearance in the cause, even though process might not have been sufficient to give jurisdiction over the person up to that point in the case. The view adopted by a majority in Julian v. Kansas City Star Co., supra, that the application for change of venue filed while the motion attacking the process was pending constituted a general appearance, was followed in the case of Tilles v. Pulitzer Publishing Co., 241 Mo. 609. In this case all of the judges concurred except Judge WOODSON who dissented upon another point. It has been held that defendant entered his general appearance by joining in a stipulation for a change of venue. [4 C.J. 1345.] We think that the authorities demonstrate that whenever the defendant, either by motion or by stipulation, asks the court to indulge in any act of its jurisdiction or to make any order, except an order the effect of which is to deny its own jurisdiction, there is a general appearance.

It is suggested by the respondent that the stipulation only consented that the hearing of the motion to quash the return should be transferred to the circuit court sitting at Kansas City. We do not so construe the stipulation. If the parties had intended to enter into such a stipulation, they no doubt would have stipulated that the hearing of the motion might be at Kansas City rather than at Independence. But it was expressly stipulated that the case might be removed and transferred. We think this was a general appearance for the same reason that an application or stipulation for change of venue is a general appearance. Surely, no one would contend that if the circuit court of Jackson county, sitting at Kansas City, had overruled the motion, that the case should have been retransferred to Independence in order that the trial might be had upon the merits. Nor would any one contend that if the motion had been overruled and the defendant had sought by prohibition to prevent the trial of the case upon the merits, that it would have been proper to direct the writ to Judge HALL, sitting at Independence. It would not have been proper for the parties to split the action so that the motion to quash the return would be pending before one judge...