State v. McLaughlin

• Citation: 170 S.W.2d 705
• Decision Date: 04 May 1943
• Docket Number: No. 26348.,26348.
• Parties: STATE ex rel. NICHOLSON v. McLAUGHLIN et al., Circuit Judges.
• Court: Court of Appeal of Missouri (US)

170 S.W.2d 705

STATE ex rel. NICHOLSON v. McLAUGHLIN et al., Circuit Judges.

No. 26348.

St. Louis Court of Appeals. Missouri.

May 4, 1943.

Rehearing Denied May 21, 1943.

"Not to be reported in State Reports."

Original proceeding by the State, at the relation of John E. Nicholson, against James E. McLaughlin and William S. Connor, as Judges of the Circuit Court of the City of St. Louis, 16th Division, to prevent such court from exercising jurisdiction in an action for divorce by Patricia A. Nicholson against relator.

Preliminary rule discharged, and peremptory writ denied.

Johnson & Garnett and Donald W. Johnson, all of Kansas City, for relator.

John W. Joynt, of St. Louis, for respondents.

HUGHES, Presiding Judge.

This is an original proceeding in prohibition instituted in this Court, whereby the relator seeks to prevent the circuit court of the city of St. Louis exercising jurisdiction in an action for divorce commenced therein by Patricia A. Nicholson against the relator, John E. Nicholson.

On July 10, 1942, the relator, John E. Nicholson, as plaintiff, commenced a suit for divorce against Patricia A. Nicholson in the circuit court of Jackson County, Missouri, at Independence, and caused an order of publication to be issued based upon allegations of the petition of divorce to the effect that defendant, Patricia A. Nicholson, had absconded or absented herself from her usual place of abode in this State and had concealed herself so that the ordinary process of law could not be served upon her. Publication of that order was begun on July 17, and continued through July 24 and July 31 and August 7 and August 14, the last insertion being more than fifteen days before the September term of the Independence court, which began on the second Monday in September.

In the meantime, while the order of publication was being published, but before its completion, and on August 1, 1942, Patricia A. Nicholson commenced a suit for divorce against John E. Nicholson in the circuit court of the city of St. Louis, returnable on the second Monday in September, and caused summons to be issued, which summons was personally served upon relator on August 3, 1942.

Thereafter, on August 13, 1942, Patricia A. Nicholson filed in the circuit court of the city of St. Louis, in the suit there commenced by her, a motion for alimony pendente lite and suit money. The relator filed in said last mentioned court a plea in abatement, alleging the pendency of the suit filed in the circuit court of Jackson County, which plea in abatement was presented to Judge James E. McLaughlin, one of the respondents herein, before whom the action was pending, and was by him taken under advisement. No ruling was made on the plea in abatement by Judge McLaughlin, and by reason of the fact that the judges of the circuit court in the city of St. Louis serve in the several divisions of the court in rotation, Judge Connor, the other respondent, is now serving in the division where the case is pending. The joint return of respondents admits that respondent, Judge McLaughlin announced in open court that he intended to and would make an order overruling relator's second amended plea in abatement and would assume jurisdiction of the cause pending in the circuit court of the city of St. Louis, notwithstanding the pendency of the suit in the circuit court of Jackson County, and further states that the respondents herein propose to make, enter and enforce an order overruling the second amended plea in abatement.

We issued a preliminary rule in prohibition. The case has now been submitted on the relator's petition, respondents' return and an agreed statement of facts.

Two suits have been commenced between the same parties involving the same subject matter, and, as stated in relator's brief, "The sole question presented by this proceeding is, which court shall proceed to judgment."

It is the position of relator that the circuit court of Jackson County first acquired jurisdiction and that the circuit court of the city of St. Louis should, upon principles of comity, abate the suit pending before it in order that the circuit court of Jackson County may proceed to judgment. This position cannot be sustained. While it is true that relator's suit in Jackson County was commenced before the wife's suit in St. Louis was commenced, the Jackson County circuit court did not acquire complete jurisdiction in that case prior to the time that the St. Louis circuit court acquired complete jurisdiction in the wife's suit, because process was served in the St. Louis case first.

Section 876, R.S.1939, Mo.R.S.A. § 876, provides: "* * * The filing of a petition in a court of record, or a statement or account before a court not of record, and suing out of process therein, shall be taken and deemed the commencement of a suit."

There is a definite distinction between the time of the commencement of a suit and the time that the court acquires jurisdiction in the suit. It has been repeatedly held, as we said in the case of City of St. Louis v. Miller, 235 Mo.App. 987, 145 S.W.2d 504, that a suit in a court of record is commenced, within the meaning of this section, so as to save the suit from the bar of the statute of limitations, when the petition is filed, even though process is not thereafter issued until the period of limitation has run. But such holdings are far afield from ruling that the court has jurisdiction to proceed with the case until there has been a waiver of service, general entry of appearance, or service of process. In the absence of service or waiver the court cannot proceed. State ex rel. Baking Company v. Calvird, 338 Mo. 601, 608, 92 S.W.2d 184. "The court can only obtain jurisdiction by waiver of service, general entry of appearance, or by service in the manner prescribed by statute. State ex rel. National Rys. of Mexico v. Rutledge, 331 Mo. 1015, 56 S. W.2d 28, loc. cit. 36, 85 A.L.R. 1378." Henneke v....