State v. Wright

• Decision Date: 02 December 1935
• Docket Number: No. 18398.,18398.
• Citation: 88 S.W.2d 427
• Parties: STATE ex rel. FEDERAL RESERVE LIFE INS. CO. OF KANSAS CITY, KAN., v. WRIGHT, Judge, et al.
• Court: Missouri Court of Appeals

88 S.W.2d 427

STATE ex rel. FEDERAL RESERVE LIFE INS. CO. OF KANSAS CITY, KAN., v. WRIGHT, Judge, et al.

No. 18398.

Kansas City Court of Appeals. Missouri.

December 2, 1935.

"Not to be published in State Reports."

Proceeding by the State of Missouri, on the relation of the Federal Reserve Life Insurance Company of Kansas City, Kan., for a writ of prohibition against the Hon. Emory H. Wright, Judge of Division No. 1 and Presiding Judge of the Circuit Court of Jackson County, Mo., at Kansas City, and another.

Writ granted.

James P. Aylward, George V. Aylward, and Terence M. O'Brien, all of Kansas City, for relator.

Johnson, Lucas, Landon, Graves, & Fane, of Kansas City, for respondents.

TRIMBLE, Judge.

A case of prohibition, wherein relator, the Federal Reserve Life Insurance Company of Kansas City, Kan., a corporation of that state, is seeking to prohibit the respondent Emory H. Wright, judge of Division 1, of the circuit court of Jackson county, Mo., from further attempting to exercise jurisdiction over relator, in a case termed a "bill in equity," filed March 27, 1935, by Michael Cohn against relator and one Herbert W. Jordan.

The "bill in equity" stated that relator had breached a contract to sell Cohn a piece of real estate in Kansas City, Mo.; and the bill sought to enforce specific performance. Jordan seems to have been made a defendant in said suit on the theory that he held the title to said land for the Federal Reserve Life Insurance Company, but apparently the defendant Federal Reserve Life Insurance Company was and is the holder of the legal title to said land.

The bill alleged that "defendant, Federal Reserve Life Insurance Company of Kansas City, Kansas, was at all times mentioned herein, a corporation duly organized and existing according to law."

The bill or petition contained no other allegation as to where or how the said defendant, Federal Reserve Life Insurance Company, might or could be served with process; nor was any statement made that said insurance company had ever been, or was, licensed to do business in Missouri, or that the superintendent of insurance in Missouri was, or ever had been, authorized to receive process for it; nor was any statement similar to that contained in the petition.

At the filing of said bill in equity for specific performance, the plaintiff therein, Michael Cohn (one of the respondents in this proceeding in prohibition), filed and attached thereto his affidavit which stated, among other things: "That defendant, Herbert W. Jordan, is a nonresident of the State of Missouri, and defendant, Federal Reserve Life Insurance Company of Kansas City, Kansas, is a corporation of another state having no office in the State of Missouri, and therefore neither of said defendants can be served in this state in the manner prescribed by law."

Thereupon, a summons in the ordinary and usual form was issued, directed to the sheriff of Cole county, Mo., commanding him to summon Federal Reserve Life Insurance Company of Kansas City, Kan., a corporation; and on March 25, 1935, said sheriff, or one of his deputies, delivered a copy of the petition and summons to the deputy superintendent of insurance of Missouri, and made his return on the writ of summons to that effect.

On May 16, 1935, said insurance company, one of the defendants in said suit and now relator herein, filed in the circuit court a motion to quash the attempted service of summons in said case. The motion stated that movant, "appearing specially, under protest and solely for the purpose of this motion and none other, and insisting upon its exemption from suit in this court and not intending to submit itself to the jurisdiction of this court as a party hereto," moved the court to quash the alleged summons and service thereof for the reason that the bill in equity did not state facts sufficient to authorize service of process on the said insurance company by delivery of summons to the superintendent of insurance; for the reason that said bill in equity does not state that this defendant has filed with the superintendent of the department of insurance a written instrument or power of attorney duly signed and sealed, appointing and authorizing said superintendent to acknowledge or receive service of process, and consenting that service of process upon said superintendent shall be taken and held to be as valid as if served upon the company, and does not state that this defendant has any policies or liabilities outstanding in the state of Missouri.

The motion to quash was overruled by Judge Wright on May 21, 1935, and immediately thereafter defendant was ordered by the court to plead further within 10 days, and leave was granted to plaintiff Cohn to amend his bill in equity by striking out the word "law," hereinabove quoted in this opinion, and inserting in lieu thereof the words, "the laws of Kansas, licensed to do business in Missouri, and having policies and liabilities outstanding in the State of Missouri," and on the next day thereafter, said court issued a commission to take depositions in Wyandotte county, Kan., on May 25, 1935, and plaintiff Cohn, by his attorney, attempted to serve a notice of the taking of such depositions on the said insurance company, now relator herein, by delivering a copy of said notice to Terence M. O'Brien; but neither he nor any of the other attorneys, now appearing for relator in this proceeding for prohibition, were at that time attorneys for said insurance company, beyond the purposes of the motion to quash the service of summons; and none of said attorneys were authorized to personally accept or receive service of notice to take depositions.

The petition for prohibition further alleged that the attempted service of process upon the superintendent did not confer jurisdiction of said court over the relator, for the reason that the bill in equity did not allege that defendant had filed with the superintendent of insurance a power of attorney authorizing him to acknowledge or receive service to be taken as valid as if served upon the company, nor did the bill in equity state that the company had any policies outstanding in Missouri, but did affirmatively state, through plaintiff's affidavit, that said company (now relator herein) could not be served with process in Missouri; but, nevertheless, said court, attempted to further exercise jurisdiction over relator by overruling its special motion to quash the alleged attempted service and by ordering relator to plead further within 10 days, and also by granting the plaintiff therein, Michael Cohn, leave to amend his bill in equity, and finally by continuing in force the said commission to take depositions.

Wherefore, the writ of prohibition was applied for to prevent the said Judge Wright from exercising jurisdiction in said suit on the bill in equity.

The provisional writ was issued on June 19, 1935, to which respondents made return, wherein they admitted certain allegations in the petition for prohibition and denied others, but as the parties, relator and respondents, filed in this court on October 4, 1935, a "stipulation as to facts," it is not deemed necessary, at least at this time, to set forth the allegations of the return and reply.

Said stipulation, after reciting that it was made in order to avoid the appointment of a special commissioner to take testimony, "and inasmuch as there is no real controversy as to facts, although one is made out by the pleadings, Relator and Respondents stipulate that the facts of this matter are as follows."

The facts then agreed to are as follows:

That relator is an insurance corporation organized according to the laws of the state of Kansas; Judge Wright is judge of the circuit court as heretofore stated; that on March 27, 1935, respondent Michael Cohn filed in said circuit court a bill in equity against relator and one Herbert W. Jordan in which it was alleged that relator was in possession of and claimed to own the east 91½ feet of the south 75 feet of lot 109, Troost Hill, a subdivision in Kansas City, Mo., upon which is an apartment building in which there is certain furniture and other personal property; that relator contracted to sell same to respondent Cohn, and the latter paid $1,000 in escrow as a part of the purchase money, but that on March 25, 1935, relator notified said Cohn that it would not go through with said contract, without giving any reason therefor; that Cohn notified relator he was ready and had all the money on hand, in the bank and now unproductive, to complete said contract, and prayed for a decree enforcing specific performance thereof.

That, concurrently with the filing of said bill in equity for specific performance, the plaintiff therein (respondent herein), Michael Cohn, filed an affidavit stating that defendant Herbert W. Jordan is a nonresident and the defendant Federal Reserve Life Insurance Company of Kansas City, Kan., is a corporation of another state having no office in the state of Missouri, and...