State v. Davis
| Decision Date | 21 May 1926 |
| Docket Number | No. 26139.,26139. |
| Citation | 284 S.W. 464 |
| Parties | STATE ex rel. COLUMBIA NAT. BANK OF KANSAS CITY v. DAVIS, Judge, et al. |
| Court | Missouri Supreme Court |
Original proceeding in prohibition by the State of Missouri, at the relation of the Columbia National Bank of Kansas City against Arch B. Davis, Judge of the Circuit Court of Livingston County, and another. Provisional rule quashed and proceeding dismissed.
Henry A. Bundschu, T. J. Madden, Harry R. Freeman, and Madden & Madden, all of Kansas City, for relator.
Nat. G. Cruzen, of Gallatin, for respondents.
An original proceeding in prohibition. Our provisional rule was ordered issued and service thereof was waived. The record does not disclose that our said rule issued, but respondents filed answer and return and relator filed motion for judgment on the pleadings. Later an amended return was filed, and the case is before us upon such record.
Respondent Davis was judge of the circuit court of Livingston county, and, while so acting, respondent Terry filed suit in that court against Ivo W. Lively and Thornton Cooke for actual and punitive damages alleged to have been sustained by him on account of false representations made by them in the sale of stock in the Bank of Jamesport. Terry resided in Daviess county. Defendant Lively resided in Livingston county, where he was served with summons, and defendant Cooke in Jackson county, where he was served with summons by the sheriff of that county. Later an amended petition was filed in said suit, wherein relator CoLumbia National Bank of Kansas City, a banking corporation was made a party defendant. Summons for said corporation defendant was thereafter issued and served in Jackson county. Appearing in said Livingston circuit court for the purpose of its motion only, said relator moved the court to quash the service of summons upon it and to dismiss on the ground that the suit was not brought in the county where the cause of action accrued or where relator had or usually kept an office or agent for the transaction of its usual or customary business and that the circuit court of Livingston county for that reason had no jurisdiction to issue summons for relator. This motion was overruled. Relator thereafter applied for and obtained our provisional rule in prohibition as above stated.
The question for decision is: Can an action against a corporation and another defendant be maintained in the county where such other defendant resides, although the cause of action did not accrue there and the corporation does not have an office or agent in such county? Respondents so contend, notwithstanding they concede that, under section 1180, R. S. 1919, an action could not be maintained against a corporation as sole defendant in Livingston county under such circumstances. Respondents contend that the second subdivision of section 1177, R. S. 1919, governs the venue of civil actions against corporations which are not sole defendants.
Section 1177 reads as follows:
"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 within 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; third, when there are several defendants, some residents and others nonresidents of the state, suit may be brought in any county in this state in which any defendant resides; fourth, when all the defendants are nonresidents of the state, suit may be brought in any county in this state; fifth, any action, local or transitory, in which any county shall be plaintiff, may be commenced and prosecuted to final judgment in the county in which the defendant or defendants reside, or in the county suing and where the defendants, or one of them, may be found." (Italics ours.)
Section 1180 reads as follows:
"Suits against corporations shall he commenced either in the county where the cause of action accrued, or in case the corporation defendant is a railroad company owning, controlling or operating a railroad running into or through two or more counties in this state, then in either of such counties, or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business."
In the view we take as to the proper construction to be given sections 1177 and 1180, it is unnecessary to consider where the cause of action accrued. We will assume for the purposes of this opinion that such cause of action did not accrue in Livingston county. It is not contended that relator had an office or agent in said county.
Relator relies upon two decisions of this court en banc, to wit: State ex rel. St. Joseph Lead Co. v. Jones, 270 Mo. 230, 192 S. W. 980; and State ex rel. Standard Fire Insurance Co. v. Gantt, 274 Mo. 490, 203 S. W. 964. In the Jones Case suit for personal injuries was instituted in the circuit court of the city of St. Louis against the corporation as sole defendant. The corporation had no office or agent in said city and the cause of action accrued in St. Francois county, where the corporation had its office and transacted its usual business. Respondent claimed that section 1754 (1180) applied to domestic corporations and not to foreign corporations and that venue was in the circuit court of the city of St. Louis under the fourth subdivision of section 1751, now section 1177. This court held that section 1754 applied to all corporations and, having so held, decided that the suit could only be maintained in St. Francois county.
The language there used must be understood in connection with the fact in that case that the corporation defendant was the sole defendant. Such language was broad enough to cover all suits against a corporation, whether such corporation is the sole defendant or joined as such with other defendants. But the court was not there considering the situation where a corporation is joined with another defendant and the suit is brought in the county where such other defendant resides. Venue in the city of St. Louis was contended for under subdivision 4 of section 1751 (1177), on the ground that a foreign corporation is a nonresident. The court deemed it unnecessary to decide the question of nonresidence. It held that section 1754 (1180) governed the venue because the word "corporations" includes both domestic and foreign corporations. If it had been held that said corporation was a nonresident of Missouri and that section 1754 (1180), fixing the venue of suits against corporations, governed the venue of the particular suit, notwithstanding such nonresidence, the case would come much nearer furnishing support for the contention of relator here.
In the Gantt Case, also, the relator corporation was the only defendant in the circuit court. Prohibition was denied because it did not appear that relator did not have an office or agent in Audrain county, where the suit was instituted. Judge Faris said that section 1751 (1177) refers solely to venue in suits between persons, while section 1754 (1180) refers solely to the place of bringing suits against corporations. But it is evident that this was said without regard or consideration being given to the situation arising where a corporation is joined as a defendant with another defendant and the suit is brought county where such other defendant resides.
Even treating the Gantt Case as intending to hold that all suits against a corporation, whether sole defendant or joined with others, must be brought in the county where the cause of action accrued or where such corporation has an office or agent, the opinion of Judge Faris announced no controlling authority on the question because the opinion received only the concurrence of the writer thereof and of Graves, C. J., and Walker, J. Woodson, J., dissented and filed a dissenting opinion in which he reached the same result, but for different reasons. Bond, Blair, and Williams, JJ., merely concurred in the result reached in the opinion of Faris, J. The judges who merely concurred in the result evidently did not agree with `everything Judge Faris said or they would have concurred in the opinion. Hence, the Jones and Gantt Cases are not controlling authority where a corporation is joined as a defendant with another defendant in a suit instituted in the county where such other defendant resides.
Relator cites Roberts v. American National Assurance Co., 201 Mo. App. 239, 212 S. W. 390. There the action was upon a policy of insurance. The cause of action did not accrue in Schuyler county where suit was instituted, and the assurance corporation, which was the sole defendant, had no office or agent in that county. Citing section 1754 (1180) and following State ex rel. v. Gantt, supra, it was held that the trial court should have sustained defendant's plea to the jurisdiction. This decision detracts nothing"from what we have said about the Jones and Gantt Cases. Nothing is said therein which is applicable where the corporation is not the sole defendant and the suit is brought in the county where its codefendant resides.
Relator cites Darby v. Weber Implement Co., 204 Mo. App. 200, 208 S. W. 116. The Springfield Court of Appeals there said:
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