State v. Miller

• Decision Date: 05 May 1925
• Docket Number: No. 19245.,19245.
• Citation: 272 S.W. 1066
• Parties: STATE ex rel. JUVENILE SHOE CORPORATION v. MILLER, Circuit Court Judge.
• Court: Missouri Court of Appeals

272 S.W. 1066

STATE ex rel. JUVENILE SHOE CORPORATION v. MILLER, Circuit Court Judge.

No. 19245.

St. Louis Court of Appeals. Missouri.

May 5, 1925.

Original proceeding in prohibition by the State, on relation of the Juvenile Shoe Corporation, to prohibit Hon. Franklin Miller, Judge of the Circuit Court of the City of St. Louis, from taking further action in a cause wherein the Central Shoe Company is plaintiff, and the Juvenile Shoe Corporation, relator herein, is defendant. Writ denied.

Lewis & Rice and William Keane Small, all of St. Louis, for relator.

Jones, Rocker, Sullivan & Angert, of St. Louis, for respondent.

NIPPER, J.

This is an original proceeding by prohibition, whereby it is sought to prohibit respondent, as one of the judges of the circuit court of the city of St. Louis, from taking further action in a certain cause wherein the Central Shoe Company is plaintiff, and the Juvenile Shoe Corporation of America, the relator herein, is defendant.

Suit was filed by plaintiff against defendant, in which plaintiff alleges that it is the owner of a certain trade-name, "Robin Hood," as applied to shoes, that defendant has advertised and threatened to use, and is using, this trade-name, in violation of plaintiff's exclusive right and ownership in and to said trade-name, and asks for a permanent injunction restraining defendant from using such name. Summons was issued and directed to the sheriff of Jasper county, Mo. This summons was served by said sheriff by delivering a copy, together with a certified copy of the petition, to the person in charge of the business office of the defendant, at the city of Carthage, in Jasper county, Mo. At the return date, the defendant filed an answer in the nature of a plea to the jurisdiction, which said answer set up the fact that defendant had neither an office nor an agent in the city of St. Louis for the transaction of its "usual and customary business," and that the plaintiff's cause of action, if any, did not accrue within the city of St. Louis.

Plaintiff's reply denied generally the new matter contained in the answer, and alleged that defendant was a Missouri corporation, and that its articles and certificate of incorporation provided that it should be located in the city of St. Louis, and that defendant held its stockholders' and directors' meetings in the city of St. Louis, and maintained an office in that city for that purpose, and that said circuit court of the city of St. Louis had jurisdiction.

When the case was called for trial, the question of jurisdiction was submitted to the trial court for determination upon the following agreed statement of facts:

"The parties hereto hereby agree that the following are the facts in connection with the plea to the jurisdiction, and upon which the said plea is hereby submitted to the court for determination:

"Defendant, the Juvenile Shoe Corporation of America, is a Missouri corporation; the certificate of incorporation being duly issued on June 8, 1918.

"The articles of agreement or incorporation of said defendant stated: 'Second. That the corporation shall be located in the city of St. Louis, state of Missouri.' Said section 'second' has never been amended or altered. Said defendant has always held its stockholders' meetings in the city of St. Louis, Mo., but for a long time prior to the institution of this suit said meetings were held in the offices of its general attorneys, Lewis & Rice, in the Federal Reserve Bank Building in St. Louis, Mo., by the courtesy of said attorneys. Said defendant has for a long time prior to the institution of this suit held its directors' meetings in the city of Carthage, Jasper county, Mo.

"Defendant has used the trade-mark 'Robin Hood,' which trade-mark is claimed by the plaintiff, and an injunction against the use of which by the defendant is asked in the petition, by advertisements appearing in a magazine published in and mailed from the city of Boston, Mass., and circulated and read by subscribers In the city of St. Louis, Mo.

"Defendant had no business office or place of business in the city of St. Louis at the time of the filing of the petition, nor for a long time prior thereto, but the office and place of business of the defendant for the transaction of its usual and customary business was at said time, and for a long time prior, in Carthage, Jasper county, Mo., where resided the president and other officers of the corporation. Two of its directors reside in St. Louis, the others in Jasper county.

"Defendant has no agent in the city of St. Louis, Mo., for the transaction of its usual and customary business, nor has it had any such agent in said city since the institution of this suit, nor has it had any such agent in said city for a long time prior to the institution of this suit.

"This agreement and stipulation, and the submission of the plea thereon, shall not be construed as a waiver of the jurisdiction, nor as an entry of appearance by the defendant; and the parties, by making this agreement as to the facts, shall not be precluded from contending that any statement herein made or fact herein agreed to is immaterial or irrelevant to the issue before the court for determination."

The court overruled defendant's plea to the jurisdiction, and set the case for trial on the merits, after which defendant applied to this court for a writ of prohibition, and, by agreement of parties, the preliminary rule was waived, and it was agreed that relator's suggestions in prohibition might be treated as the preliminary rule, and respondent's return as the return of the same.

The first and principal question which we are called upon to decide is whether or not the court has jurisdiction under our venue statute with respect to corporations. Section 1180, R. S. Mo. 1919. It is the contention of the relator that, under the provisions "of this statute, unless the cause of action accrued in the city of St. Louis, said court had no jurisdiction, because ...