State v. Bradley

• Decision Date: 22 December 1905
• Citation: 91 S.W. 483,193 Mo. 33
• Parties: STATE ex rel. JACKSON v. BRADLEY, Judge.
• Court: Missouri Supreme Court

91 S.W. 483

193 Mo. 33

STATE ex rel. JACKSON v. BRADLEY, Judge.

Supreme Court of Missouri.

December 22, 1905.

1. VENUE—SEVERAL DEFENDANTS.

Under Rev. St. 1899, § 562, providing that suits shall be brought either in the county where defendant resides or in the county where plaintiff resides and defendant may be found, or, when there are several defendants residing in different counties, then in any such county, the joinder of a person as defendant who is not jointly liable with the other defendant, and is not a necessary party, is insufficient to give the court jurisdiction as against the party not residing in the county where the suit is brought, in view of section 539, denominating the parties to an action by referring to the plaintiff as the complaining party and defendant as the adverse party.

2. PARTIES—DEFENDANTS.

Rev. St. 1899, § 543, provides that any person may be a defendant who claims an interest in the controversy adverse to plaintiff, or who is a necessary party to a complete determination of the questions involved. Section 544 provides that if the consent of any one who should be joined as plaintiff cannot be obtained, he may be made a defendant; the reason therefor being stated in the petition. H., J., and S., attorneys, prosecuted an action, for which J. collected the fee. Held, that, in a suit by H. against J. to recover his share of the fee, S. was not a necessary party.

In Banc. Prohibition by the state, on the relation of George P. B. Jackson, against N. M. Bradley, judge. Preliminary rule in prohibition made absolute.

John E. McKeighan and Jos. S. Laurie, for relator. O. L. Houts, for respondent.

MARSHALL, J.

This is an original prohibition to prevent the respondent from entertaining jurisdiction in a certain case in Johnson county, Mo., wherein O. L. Houts is the plaintiff, and the relator and James W. Suddath are the defendants, on the ground that the respondent has no jurisdiction over the person of the relator in that case. A preliminary rule in prohibition was issued by this court, and, at the return term thereof, the respondent appeared and moved to dismiss the cause, on the ground that the petition and exhibits upon which the preliminary rule in prohibition was granted show that the respondent had jurisdiction of the subject-matter of the action and of the parties thereto including the relator, and had not exceeded his lawful powers; and, further, because upon the facts stated in the petition this court would necessarily have to pass upon the merits of that action in a proceeding by prohibition; and, further, because the petition is insufficient in law. The case, therefore, stands for judgment upon the facts stated in the petition, which, so far as the same are well pleaded, are confessed by the motion to dismiss. The essential facts stated in the petition are these: The respondent is the judge of the circuit court of Johnson county. On the 14th of January, 1904, Houts instituted a suit against Jackson, in the circuit court of the city of St. Louis, to recover the sum of $4,378, alleged to be due him for his services as attorney in a certain suit heretofore prosecuted to final judgment and recovery, in a case wherein Minter Bros. sued Bradstreet Commercial Agency for libel and recoverd $27,000, with interest, and wherein Jackson collected, as principal, interest, and costs, the sum of $36,298.10, and retained thereof the sum of $17,548.10, for the purpose of covering the fees of Jackson, Houts, and Suddath. Suddath also instituted a similar suit against Jackson in the city of S. Louis. It was agreed in those suits that the judgment in one should settle both. Both of those cases are pending and undetermined. While those cases were still so pending, Houts instituted a similar suit in the circuit court of Johnson county against Jackson and Suddath, alleging that he and Suddath were each entitled to one-fourth part of the $17,548.10 retained by Jackson as aforesaid, and that Suddath refused to join as a party plaintiff, and therefore he was made a party defendant. Summons was issued and served on Suddath in Johnson county, but, Jackson not being found therein, a summons against him was issued and sent to the sheriff of the city of St. Louis, who served the same upon Jackson in that city. At the return term Jackson appeared, limiting his appearance for the purposes of the motion, and moved to quash the summons and dismiss the suit, on the ground that the court had no jurisdiction over him, because he resided in the city of St. Louis and the plaintiff resided in Johnson county. The court overruled the motion to dismiss, and thereupon Suddath filed an answer, in which he admitted all the allegations of the petition and affirmatively prayed judgment against Jackson for one-fourth of the $17,548.10, which Houts alleged Jackson had received. Jackson then applied to this court for this writ of prohibition.

Jurisdiction: Section 562, Rev. St. 1899, provides: "Suits instituted by summons shall, except as otherwise provided by law, be brought: first, when the defendant is a resident of the state, either in the county within which the defendant resides, or in the county in which the plaintiff resides and the defendant may be found; second, when there are several defendants and they reside in different counties, the suit may be brought in any such county," etc. There were several defendants in the action of Houts against Jackson and Suddath. They resided in different counties. The question, then, is whether, under the second subdivision of the section quoted, the circuit court of Johnson county could acquire jurisdiction over Jackson, who resided in the city of St. Louis, on the ground that he was a defendant in the suit in which Suddath, who was a resident of Johnson county, was also defendant. This provision of the statutes underwent adjudication by this court in Graham v. Ringo, 67 Mo. 324. That was an action against Ringo, as maker, and Hector, as guarantor, of a certain promissory note. Hector resided in Cape Girardeau county, and Ringo resided in and was served in Scott county. The action was instituted in the Cape Girardeau court of common pleas. After judgment by default, Ringo, appearing specially, moved to set aside the judgment, for the reason that he could not be jointly sued with Hector, and, being a resident of Scott county, the common pleas court of Cape Girardeau county acquired no jurisdiction over his person by the service of process on him in Scott county. The lower court sustained the motion, and the plaintiff appealed. This court held that the obligation of Ringo and Hector was not a joint engagement, and therefore they could not be sued jointly. It then held (loc. cit. 326): "Nor could any judgment have been rendered in this action against Ringo alone. He was not jointly liable with the defendant Hector, and did not reside in the county in which the action was brought, and was not served with process in said county, and the court acquired no jurisdiction over his person. Our statute provides that, when there are several defendants residing in different counties, suit may be brought in either of said counties, and in such case a separate summons shall be issued to each county for all the defendants residing therein. But this statute evidently contemplates a case in which there is a joint liability on the part of all the defendants. It was not necessary for the defendant Ringo to appear and plead to the jurisdiction of the court, as was done in the case of Capital City Bank v. Knox, 47 Mo. 333, as it sufficiently appeared from the face of the petition that the defendants were not jointly liable, and that the defendant Hector was joined for the purpose of acquiring jurisdiction over the defendant Ringo." The proper construction of section 562, Rev. St 1899, again came before this court in Haseltine v. Messmore, 184 Mo. loc. cit. 314, 82 S. W. 115. After quoting the first clause of that section, it was said: "It was held in the case of Graham v. Ringo, 67 Mo. 324, that where two persons who are not jointly liable are joined as defendants in one action, if one of them resides and is served with process in a county other than that wherein action is brought, the court acquires no jurisdiction over him; and if the misjoinder appears from the face of the petition the question of jurisdiction may be raised after judgment." It was further held that "unless there is a joint liability between the defendants, an action cannot be maintained against them jointly."

The respondent contends that Graham v. Ringo is in effect...