State ex rel. White v. Marsh, 62754

Citation646 S.W.2d 357
Decision Date23 February 1983
Docket NumberNo. 62754,62754
PartiesSTATE of Missouri ex rel. Delta F. WHITE, individually, and as personal representative of Joseph D. White, deceased, Relators, v. The Honorable William J. MARSH, Judge of Division One of the Circuit Court of Jackson County, Respondent.
CourtUnited States State Supreme Court of Missouri

Robert K. Ball, II, David R. Odegard, Kansas City, for relators.

Thomas F. Gordon, Craig T. Smith, Kansas City, for respondent.

BLACKMAR, Judge.

The relators filed suit in the Circuit Court of Jackson County, Missouri, against The Mayo Clinic, The Mayo Foundation, and others, charging medical malpractice. The defendants Mayo, according to uncontroverted affidavits filed, are situated entirely in Minnesota. The petition alleged that these defendants "continued plaintiff's medical treatment in the State of Missouri by counseling and advising plaintiff's radiologist concerning plaintiff's care and treatment in the State of Missouri."

Summons was served on the defendants Mayo in Minnesota by an officer authorized to serve process under the laws of that state, on January 24, 1980.

On February 21, 1980 the defendants Mayo made application, through Missouri counsel, for an extension of time "to file a responsive pleading to the Plaintiff's Petition," alleging that counsel had only recently been retained and needed time "for review of the pleadings and investigation ... in order to file a responsive pleading." By order entered February 25, 1980 respondent granted them "until the 24th day of March, 1980, to respond in the instant case." Neither the application nor the order mentioned any purpose of raising an issue of process or of jurisdiction over the person.

On March 24, 1980 the defendants Mayo filed "Motion to Dismiss for Lack of Jurisdiction over the Person or to Dismiss for Insufficiency of Process, and to Quash Purported Service of Process," accompanied by four affidavits. On May 8, 1980 the respondent entered an order sustaining the motions to dismiss and to quash service of process, and dismissing the petition as to the defendants Mayo. The trial court denied relators' motion for reconsideration and the relators sought mandamus, contending that the respondent had a ministerial duty to proceed with the case. The Missouri Court of Appeals, Western District, denied the petition but it was renewed in this Court and we issued our alternative writ.

Relators do not challenge the respondent's ruling that the defendants Mayo were not subject to longarm service in Missouri. They claim, rather, that these defendants, by seeking and obtaining an unqualified extension of time for responding to the malpractice petition, waived their right to challenge jurisdiction over the person and effected a general appearance in the case.

The respondents argue that the issue of jurisdiction over the person was properly raised in accordance with Supreme Court Rule 55.27, which provides in pertinent part as follows:

(a) ... Every defense, in law or fact, to a claim in any pleading ... shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion

* * *

(2) Lack of jurisdiction over the person

* * *

A motion making any of these defenses shall be made within the time allowed for responding to the opposing party's pleading.... Motions and pleadings may be filed simultaneously without waiver of the matters contained in either. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.

* * *

(f) A party who makes a motion under this Rule may join with it any other motions herein provided for and then available to him. If a party makes a motion under this Rule but omits therefrom any defense or objection then available to him which this Rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, [with exceptions not here pertinent]

(g)(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency of service of process ... is waived (A) if omitted from a motion in the circumstances described in subdivision (f) or (B), if it is neither made by motion under this Rule nor included in a responsive pleading.

The respondent also points to the provisions of Rule 44.01(b), as follows:

When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order ...

One who looked only at the text of these rules would surely conclude that the Motions to Quash and Dismiss were timely and in strict compliance with the rules. The defense of want of jurisdiction over the person was raised by motion (Rule 55.27(a)(2)). The thirty day period for filing the motion (Rule 55.25) was extended by court order on application made before the time expired. The last clause of Rule 44.01(b) details certain time limits which are not subject to extension, but Rules 55.25 and 55.27 are not listed. Rule 55.27(g)(1) sets forth two situations in which defenses relating to jurisdiction over the person and sufficiency of process are waived, as by filing other motions without including these defenses, or by failing to raise them by motion or answer, but neither of these situations here obtains. If there has been a waiver by means of the course of action pursued by the defendants Mayo it necessarily must arise on account of something not specified in the Rules.

The relators rely on principles of procedural law developed in most, if not all, American jurisdictions during the nineteenth and early twentieth centuries, and firmly expounded in Missouri law prior to the adoption of the Civil Code of 1943. A defendant who wants to challenge jurisdiction over the person faces formidable obstacles. One option is to ignore a summons in the hope that any default judgment subsequently rendered will be found to be void for want of jurisdiction over the person. This option is still available, see Crouch v. Crouch, 641 S.W.2d 86 (Mo. banc 1982), but admittedly risky. The second historical alternative was to enter a "special appearance," limited to the challenge of jurisdiction over the person. The cases held that one who elected to pursue this course had to stay out of court for all purposes not related to the issue of personal jurisdiction. 1 There is substantial authority that the taking of an unqualified extension of time to respond to the opposing pleading constituted the entry of a general appearance. See Annot., 81 ALR 166 (1932); Harrison v. Murphy, 106 Mo.App. 465, 80 S.W. 724 (1904).

Missouri was one of the first states to adopt the "Field Code" of civil procedure, having done so in 1849. The code provided the means for challenging jurisdiction over the person, 2 but the law of special appearance and of entry of a general appearance by requesting the court to grant relief not related to issues of personal jurisdiction is not found in the code provisions in express terms. We must determine the extent to which these principles of the common law of procedure survived the subsequent codifications of Missouri civil procedure.

The Federal Rules of Civil Procedure were initially promulgated in 1937. Rules 6(b) and 12(b) are essentially the same as our present Rules 44.01(b) and 55.27(a). The Missouri Civil Code of 1943 (Mo. Laws 1943, at 353; Ch. 506-512, RSMo 1949) borrowed heavily from the Federal Rules and §§ 509.290 and 506.060, RSMo 1959 are for present purposes indistinguishable from Federal Rules 12(b) and 6(b). The present Missouri Rules of Civil Procedure (Mo.S.Ct. Rules 41 through 101) were adopted in 1959, under the authority of Art. V, § 5 of the Constitution of Missouri. Section 509.290 became Rule 55.27(a) 3 and § 506.060 became Rule 44.01(b), both without significant change. The words "special appearance" do not appear in the Civil Code of 1943 or in the Rules of Civil Procedure, just as they were absent from the pre-1943 Code. There is no language of waiver through the securing of an extension of time. Yet there are persistent suggestions that the historic requirements still apply, and this Court has never given a definitive answer.

The late, respected Professor John S. Divilbiss discussed the problem in an article written more than 20 years ago. He suggested that the framers of the Civil Code intended to eliminate the requirement of special appearance and to adopt a complete and comprehensive code of procedural law, including rules which charted a reliable course for those who wanted to contest jurisdiction over the person. Divilbiss, Special Appearances in Missouri, 27 Mo.L.Rev. 533 (1962). Yet, because of post-code decisions which seemed to perpetuate the traditional concepts, 4 he was unable to give the profession complete assurance on the point. The relators cite post-1943 Code decisions which seem to leave the matter in doubt. 5 It must be said that, under this state of the authorities, the defendants Mayo took a substantial risk in applying for the extension of time before filing the Motions to Quash and Dismiss.

The federal authorities, construing rule provisions which are similar in all material respects, give strong support to the positions taken by Professor Divilbiss and by the respondent. In Orange Theater Corp. v. Rayherstz Amusement Corp., 139 F.2d 871 (3d Cir.1944), cert. denied, 322 U.S. 740, 64 S.Ct. 1057, 88 L.Ed. 1573 (1944), a defendant entered into a stipulation with the plaintiff for extending the time to respond to the plaintiff's complaint, and then filed a motion to dismiss for want of personal jurisdiction. The plaintiff...

To continue reading

Request your trial
24 cases
  • Farris v. Boyke
    • United States
    • Missouri Court of Appeals
    • December 13, 1996
    ... ... be "governed by and interpreted in accordance with the laws of the State of Illinois." All of the Respondents are residents of Illinois and ... the requisite 'affiliating circumstances' are present." State ex rel. Sperandio v. Clymer, 581 S.W.2d 377, 382 (Mo. banc 1979). Random, ...         In State ex rel. White v. Marsh, 646 S.W.2d 357 (Mo. banc 1983), the Supreme Court of Missouri ... ...
  • State v. Omega Painting, Inc.
    • United States
    • Indiana Appellate Court
    • May 9, 1984
    ... ... State ex rel. Cohen, (1971) 257 Ind. 112, 114, 272 N.E.2d 611, 612 (emphasis supplied). It is clear that the ... sitting en banc, reached a similar result in State ex rel. White v. Marsh, (1983) Mo., 646 S.W.2d 357, 362. In accord with these authorities, we too conclude that ... ...
  • Wong v. Mortgage
    • United States
    • U.S. District Court — Western District of Missouri
    • April 18, 2011
    ... ... 2010, the date when plaintiffs filed their Sixth Amended Petition in state court.         This case has had a long history in the state and ... failed to timely bring the party into the action."); State ex Page 14 rel. Hilker v. Sweeney , 877 S.W.2d 624, 628 (Mo. 1994) (finding that Rule ... ...
  • Bland v. Imco Recycling, SD23703
    • United States
    • Missouri Court of Appeals
    • January 30, 2002
    ... ... On June 3, 1996, Marnor filed a certificate of merger in the State of Illinois.(FN1) The document states in pertinent part:RESOLVED, that, ... S.D. 2000) (quoting State ex rel. Sperandio v. Clymer, 581 S.W.2d 377, 384 (Mo. banc 1979)). If a party ... White v. Marsh, 646 S.W.2d 357 (Mo.banc 1983). In White our Supreme Court held ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT