State of Missouri v. Masterson, 18629.

• Decision Date: 15 June 1936
• Docket Number: No. 18629.,18629.
• Citation: 95 S.W.2d 864
• Parties: STATE OF MISSOURI AT THE RELATION OF LIBERTY LIFE INSURANCE CO., APPELLANT, v. FORREST G. MASTERSON, JUSTICE OF THE PEACE, ETC., ET AL., RESPONDENTS.
• Court: Missouri Court of Appeals

95 S.W.2d 864

STATE OF MISSOURI AT THE RELATION OF LIBERTY LIFE INSURANCE CO., APPELLANT, v. FORREST G. MASTERSON, JUSTICE OF THE PEACE, ETC., ET AL., RESPONDENTS.

No. 18629.

Kansas City Court of Appeals. Missouri.

June 15, 1936.

Appeal from Circuit Court of Jackson County. — Hon. Daniel E. Bird, Judge.

AFFIRMED.

Otis A. Allen and Henderson & Deacy for appellant.

John J. Cosgrove for respondent.

SHAIN, P.J.

This is an appeal from a judgment of the Circuit Court of Jackson County, Missouri, denying prohibition and dissolving temporary writ issued to Forrest G. Masterson, a regular Justice of the Peace in and for Fort Osage Township, Jackson County, Missouri, and one Claude A. Smisor.

It appears that the Liberty Insurance Company, appellant herein, on January 30, 1923, issued a policy of insurance to Claude A. Smisor, a respondent herein. It appears that said Smisor on November 24, 1934, instituted a suit in the Justice Court of aforesaid Justice of the Peace, Forrest G. Masterson, against said insurance company, and that service was had on the Superintendent of Insurance of Missouri. The alleged purpose of said suit was to collect $287.50 and interest claimed to be due Smisor on aforesaid contract of insurance. On November 26, 1934, the appellant herein filed a prohibition petition in the Circuit Court of Jackson County, Missouri, against Forrest G. Masterson, Justice of the Peace aforesaid, and Claude A. Smisor, respondents herein. The alleged grounds and purposes of said suit are expressed in the petition as follows:

"That the defendant, Forrest G. Masterson, as justice of the peace, is attempting to assume and exercise jurisdiction of said alleged cause of action. That the only attempted service of summons had upon the said plaintiff was through the superintendent of insurance of the State of Missouri. That said service is void and said justice of the peace has no actual jurisdiction to try said cause.

"That the defendant Smisor has filed the said action in violation of the Laws of Missouri, for the purpose of harassing, vexing and annoying said plaintiff in an attempt to force a compromise settlement of his alleged claim."

The aforesaid circuit court issued an alternative writ and cited the respondents herein to appear and show cause why permanent writ should not be issued. Thereafter the issues were made up and court procedure had resulting in a judgment of the circuit court refusing a permanent writ and dissolving the temporary writ issued. From this judgment the Liberty Life Insurance Company duly appealed.

OPINION.

The solution of the question raised in this appeal rests in the construction to be given of what is at present section 5894, Revised Statutes, Missouri 1929.

The appellant contends that:

"Forrest G. Masterson, Justice of the Peace in and for Fort Osage Township, Jackson County, Missouri, Respondent Herein, Had No Jurisdiction under the Missouri Law to Proceed in the Cause Filed and Prosecuted Before Him by Claude A. Smisor, Respondent, Since the Policy of Insurance Involved Was Not Made in This State and Was Issued by a Foreign Insurance Company to a Non-resident of the State of Missouri."

The respondents contend that:

"The trial court properly rendered judgment against the Liberty Life Insurance Company in setting aside the temporary writ of prohibition and in denying to grant a permanent writ of prohibition for the reason that the policy sued on was a policy outstanding in the State of Missouri."

The case was presented in the circuit court on an agreed statement of facts. We state the material facts, applicable to the real issue presented, which are admitted to be as follows:

The insurance company is a Kansas corporation and, at the time of the issuance of the policy in question, was not licensed to do business in Missouri. The insured at the time the policy was issued was a citizen of Kansas and the policy was fully executed in the State of Kansas. After the insurance contract was executed, the insured moved to the State of Missouri and was a resident of the State of Missouri when he instituted the suit in the justice court. It is further admitted that after the contract of...