State v. Falkenhainer
Citation | 274 S.W. 758 |
Decision Date | 01 July 1925 |
Docket Number | No. 25753.,25753. |
Parties | STATE ex rel. COMPAGNIE GÉNÉRALE TRANSALANTIQUE v. FALKENHAINER et al., Judges. |
Court | United States State Supreme Court of Missouri |
Original proceeding in prohibition by the State of Missouri, at the relation of Compagnie Générale Transatlantique, against Victor H. Falkenhainer and others, as Judges of the Circuit Court of the City of St. Louis, Mo., to prohibit further proceedings in suit of Wm. J. Gundelach against relator. Preliminary rule in prohibition quashed.
William C. Robinson, of St. Louis, for plaintiff.
Leahy, Saunders & Walther, of St. Louis, for respondents.
Original proceeding in prohibition. Preliminary rule was duly issued, and the pleadings thereafter made up. This proceeding grows out of the suit of Wm. J. Gundelach, Plaintiff, v. Compagnie Générale Transatlantique, a corporation under the Laws of the Republic of France. Defendant, Gundelach, is a resident of the city of St. Louis, Mo., and the defendant in such suit was engaged in running ships upon the high seas from ports in the Republic of France to and from ports in the United States. In November, 1921, plaintiff, in the action out of which this action grows, was a passenger upon a steamship called "City of Chicago" then being operated by defendant. As indicated, plaintiff brought suit in the circuit court of the city of St. Louis against the defendant. The action is one for personal injuries, alleged to have been received while a passenger upon said steamship, through the negligence of defendant. The particulars of that case are not necessary here. It suffices to say that the action was for $10,000 damages, alleged to have been occasioned by the negligence of defendant. The suit was filed about November 16, 1922, and summons was issued upon that day by the clerk of the circuit court. Later the sheriff of the city of St. Louis made the following return:
No other summons was issued, nor was further attempt made to get service upon the defendant in the circuit court suit. Later, on the 18th day of August, 1923, there was a default judgment entered against defendant in Division No. 1; this being the assignment division of said court, which was made up of some 16 divisions. Motion was made and filed to set aside this default judgment, but the appearance was special and not general, as specified in the motion. September 15, 1923, counsel for Gundelach filed motion to strike defendant's motion to set aside default judgment from the files. This motion reads:
We quote this motion because it outlines the position of the respondents in the instant case. The return pleads that depositions were taken in the case on April 30, 1923, and sets out portions thereof, and then avers that the appearance of defendant at the taking of such depositions was an appearance in the action, and that after such appearance the defendant failed to answer the petition of plaintiff, and that by reason thereof the entry of a default judgment was proper. The reply to the return in the case now before us sets out the depositions in full, and then avers that there was no entry of appearance by reason of the appearance of counsel at the taking of the depositions. A much discussed question is one that we do not find in the record of the Gundelach Case in the circuit court, nor in the proceedings in this action. It is urged in the briefs that the jurisdiction of the subject-matter is in the federal courts, rather than in state courts. This sufficiently outlines the case, but leaving for the opinion the more specific facts in connection with the points urged.
I. The first point made by relator is that prohibition is the proper remedy. If the trial court was without jurisdiction, there is no question as to the fact that prohibition is the remedy. Respondents do not question the remedy. In this case, however, the jurisdiction of the circuit court was dependent upon facts. There was no service of process, and the question of jurisdiction over the person of defendant was dependent upon the fact as to whether or not defendant, through counsel, had voluntarily appeared in the taking of depositions in the case, and thereby submitted itself to the jurisdiction of the court. There is nothing to the point that the appearance of counsel for defendant at the taking of depositions in New York was not voluntary. Even though notice and dedimus from the Missouri court had been duly issued for the taking of these depositions, and the witnesses were forced to attend the taking of the depositions, and to give testimony, yet the defendant did not have to appear, and if it did appear, such appearance must be deemed to have been voluntary. This because there was no power to compel such appearance. The mere fact that its officers were witnesses did not make the appearance of the corporation involuntary. So whatever appearance, if any, upon the part of defendant corporation, must be deemed voluntary.
II. Ordinarily, where the jurisdiction of a court is dependent upon facts, then the finding of the court of its jurisdiction cannot be questioned in a collateral proceeding, and prohibition, such as we have here, is a collateral proceeding. State ex rel. v. Mills, 231 Mo. loc. cit. 499, 133 S. W. 22; Howey v. Howey (Mo. Sup.) 240 S. W. 457; State ex rel. v. Shackelford, 263 Mo. loc. cit. 61, 62, 172 S. W. 347, and cases cited infra, in this paragraph.
But it is a further rule that where the facts as to jurisdiction are undisputed, or agreed upon, then the question of jurisdiction becomes a matter of law, and can be urged in a collateral proceeding. Here the facts upon which jurisdiction was assumed are, not only of the files in the court, but are undisputed, and in effect agreed to, because both counsel rely upon and quote from them—the relator by reply setting them out in full. It then becomes a legal question as to whether or not there was jurisdiction. State ex rel. v. Homer, 249 Mo. loc. cit. 65, 155 S. W. 405; State ex rel. v. Holtcamp, 266 Mo. loc. cit. 373, 181 S. W. 1007; State ex rel. v. Caulfield, 245 Mo. loc. cit. 879, 150 S. W. 1047; State ex rel. v. Shields, 237 Mo. loc. cit. 335, 141 S. W. 585; State ex rel. v. Mills, 231 Mo. loc. cit. 499, 133 S. W. 22.
We are speaking now of jurisdiction over the person, and not of jurisdiction of subject-matter. Of the latter and other questions in the following paragraphs. As said, the facts are practically admitted, at least are undisputed; in such the question of law upon the facts.
III. The alleged jurisdiction of the person of the defendant, being one dependent upon admitted, or at least uncontroverted, facts, we shall assume to determine whether or not the circuit court of St. Louis had jurisdiction of the person when the default judgment was taken. In the files of the case were the depositions of two witnesses taken in New York City. The record shows that the defendant was represented by counsel. Defendant had an office in New York with a general passenger traffic manager for its business. The notary before whom the depositions were taken certifies as follows:
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