The State ex rel. Jackson v. Bradley
| Decision Date | 23 January 1906 |
| Parties | THE STATE ex rel. JACKSON v. BRADLEY, Judge |
| Court | Missouri Supreme Court |
Rule made absolute.
John E McKeighan and Jos. S. Laurie for relator.
(1) The circuit court of Johnson county did not acquire jurisdiction over Jackson by service of summons issued to and served in the city of St. Louis. Although Suddath was named as a defendant, there was no joint liability by him and Jackson. In such case, section 562, Revised Statutes, relied on, does not apply. Graham v. Ringo, 67 Mo. 324; Haseltine v. Messmore, 184 Mo. 314. It clearly appears from the petition that Suddath and Jackson are not jointly liable to Houts, and there was therefore no authority for serving Jackson with process in St. Louis. (2) The case of Houts v. Jackson and Suddath is not within the scope of sec. 562, Revised Statutes 1899, because Suddath is not a "defendant" in the meaning of the statute. Section 539 prescribes who is a defendant in the practice in this State -- that is, "the adverse party" to the plaintiff. Since Suddath is not a party adverse to Houts, the suit could not be instituted in Johnson county and jurisdiction acquired over Jackson by service in St. Louis 22 Ency. of Pl. and Pr., 800, note; Allen v. Miller, 11 Ohio St. 378; Thompson v. Massie, 41 Ohio St 307; Barry v. Wachosky, 57 Neb. 534. (3) That one may be joined as a plaintiff does not authorize the making him a defendant, if he refuses to join as plaintiff. The statute requires that he should be a necessary plaintiff before his refusal to act as such permits his being named a defendant. Sec. 544, R. S. 1899; Bliss on Code Pleading, sec 61; McNear v. Williamson, 166 Mo. 369. Houts and Suddath, claiming distinct sums of money (although the same in amount), under separate employments, had no such joint interest as required them to sue jointly. 15 Ency. of Pl. and Pr., 735; 16 Ency. Law and Pro., 182, 183, 184. (4) The proceeding in Johnson county is not a suit in equity, and cannot be maintained as such, because from the face of the petition it appears that Houts has a complete and adequate remedy at law, on his alleged cause of action. An action for money had and received, or in assumpsit on a promise for the benefit of another, is perfect remedy on the allegations of the petition. Equity will not entertain a case where a party seeks to recover an aliquot part of a fund, even though the fund is held in trust. 15 Ency. Pl. and Pr., 658; 22 Ibid, 100. Although a case may nominally fall under one of the heads of equity jurisdiction, still if there is an adequate remedy at law a suit in equity cannot be maintained. 1 Pomeroy's Eq., sec. 178 and notes; 22 Ency. Pl. and Pr., 12; Cane v. Bloodgood, 7 Johns. Ch. 90; Benton Co. v. Morgan, 163 Mo. 677; Gaines v. Miller, 111 U.S. 395; Buzard v. Houston, 119 U.S. 341; Paton v. Major, 46 F. 210; Loan Assn. v. Buchanan, 66 F. 801. (5) The joining of Suddath as a defendant was a subterfuge for the purpose of acquiring jurisdiction in Johnson county over Jackson, a resident of St. Louis. This stands admitted by the pleadings, and is a practice which will not be tolerated by the courts. Bank v. Knox, 47 Mo. 333; Byler v. Jones, 79 Mo. 261; Diffenderffer v. Rowden, 83 Mo.App. 268.
O. L. Houts for respondent.
(1) Under the allegations of the petition the amount due each, Jackson, Suddath and Houts, is dependent upon proof of matters of fact and calculation and can be determined only by an accounting in which all are parties. Under the allegations of the petition Jackson, Suddath and Houts all had an undivided, unascertained interest in this balance in the hands of Jackson, and he holds it as trustee for himself and them. Houts therefore properly sued in equity for an accounting, and made Jackson and Suddath defendants. R. S. 1899, sec. 543; Carr v. Waldron, 44 Mo. 393; Dillon v. Bates, 39 Mo. 292; Harrison v. Murphy, 106 Mo.App. 465; Frost v. Redford, 54 Mo.App. 353; Wolff v. Ward, 104 Mo. 155; Gartside v. Gartside, 113 Mo. 358; Goodwin v. Goodwin, 69 Mo. 617; Roselle v. Bank, 119 Mo. 84; Reilley v. Cullen, 159 Mo. 322; Roselle v. Beckemeir, 134 Mo. 391. It is so held by the United States Courts: McKey v. Lamon, 159 U.S. 317; Minnesota v. Northern Securities Co., 184 U.S. 199; Belding v. Gains, 37 F. 817; Ins. Co. v. Svendson, 74 F. 736; Jessup v. Railroad, 36 F. 736. The rule is fundamental and prevails everywhere. 16 Cyc., p. 181; 15 Enc. Plead. and Prac., 672-3-4, 735-736-614; Husted v. Thompson, 158 N.Y. 328; Bundy v. McClain, 104 Wis. 363; Bue v. Mechanics Bldg Ass'n, 74 N.C. 17; Bank v. Gardner, 3 Gray (Mass.) 304; Perry on Trusts, p. 843; Hill on Trusts, pp. 518-847; Jones on Mortgages, sec. 1369; Adams' Equity (8 Ed.), 314; 1 Pomeroy's Eq. Jur. (2 Ed.), sec. 114. (2) Suddath was properly and necessarily made a defendant with Jackson in the action by Houts, because their interests in the trust were and are unascertained, and an accounting was necessary. Suddath and Houts were and are alike interested in having Jackson declared a trustee, but then and there the indentity of the interests of Suddath and Houts ceases. Houts seeks to recover for himself, and not for himself and Suddath jointly, his reasonable fee for the services rendered. When Jackson is declared a trustee, the interests of Suddath and Houts become adverse, because each claims for himself an unascertained interest in the same trust fund. Jackson cannot, therefore, deprive the circuit court of Johnson county of jurisdiction of the case of Houts v. Jackson and Suddath by this writ or by asserting that Suddath should have been made plaintiff instead of defendant. And making Suddath a defendant in the action did not amount to collusion for the purpose of giving the circuit court of Johnson county jurisdiction, because Suddath was an indispensable party defendant in this suit, and where that is the case there can be no collusion. This is the law of this State, it is submitted, settled by statute and a long line of decisions. R. S. 1899, sec. 543; Carr v. Waldron, 44 Mo. 393; Dillon v. Bates, Trustee, 39 Mo. 292; Harris v. Murphy, 106 Mo.App. 465; Wolff v. Ward, 104 Mo. 155; Frost v. Redford, 54 Mo.App. 353. This is the law in the Federal Courts and everywhere. Belding v. Rains, 37 F. 817; McKey v. Lamon, 159 U.S. 317; Jones on Mortgages, sec. 1369; 5 Ency. Plead. and Prac., 672-3-4, and note. The interest of Suddath was not joint with that of Houts. Richey v. Bronson, 33 Mo.App. 424.
MARSHALL, J. Gantt, Valliant, Fox and Lamm, JJ., concur; Burgess, J., concurs in what is said as to the law, but dissents from the judgment on the ground that relator had an adequate remedy by appeal from the ruling of the trial court; Brace, C. J., absent.
OPINIONIn Banc
Prohibition.
This is an original prohibition to prevent the respondent from entertaining jurisdiction in a certain case in Johnson county, Missouri, wherein O. L. Houts is plaintiff, and the relator and James W. Suddath are the defendants, on the ground that the respondent has no jurisdiction over the person of the relator in that case. A preliminary rule in prohibition was issued by this court, and at the return term thereof, the respondent appeared and moved to dismiss the cause on the ground that the petition and exhibits upon which the preliminary rule in prohibition was granted, show that the respondent had jurisdiction of the subject-matter of the action, and of the parties thereto, including the relator, and had not exceeded his lawful powers; and further because upon the facts stated in the petition this court would necessarily have to pass upon the merits of that action in a proceeding by prohibition; and further because the petition is insufficient in law.
The case, therefore, stands for judgment upon the facts stated in the petition, which so far as the same are well pleaded, are confessed by the motion to dismiss. The essential facts stated in the petition are these:
The respondent is the judge of the circuit court of Johnson county. On the 14th of January, 1904, Houts instituted a suit against Jackson, in the circuit court of the city of St Louis, to recover the sum of $ 4,378, alleged to be due him for his services as attorney in a certain suit heretofore prosecuted to final judgment and recovery, in a case wherein Minter Brothers sued Bradstreet Commercial Agency for libel and recovered $ 27,000 with interest, and wherein Jackson collected, as principal, interest and costs, the sum of $ 36,298.10 and retained thereof the sum of $ 17,548.10, for the purpose of covering the fees of Jackson, Houts and Suddath. Suddath also instituted a similar suit against Jackson in the city of St. Louis. It was agreed in those suits that the judgment in one should settle both. Both of those cases are pending and undetermined. While those cases were still so pending, Houts instituted a similar suit in the circuit court of Johnson county against Jackson and Suddath, alleging that he and Suddath were each entitled to one-fourth part of the $ 17,548.10 retained by Jackson as aforesaid, and that Suddath refused to join as a party plaintiff, and therefore he was made a party defendant. Summons was issued and served on Suddath in Johnson county, but Jackson not being found therein, a summons against him was issued and sent to the sheriff of the city of St. Louis, who served the same upon Jackson in that city. At the return term Jackson appeared, limiting his appearance for the purposes of the motion, and moved to quash the summons and dismiss the suit, on the ground that the court had no jurisdiction over him, because he resided in the city of St. Louis and the plaintiff resided in Johnson county. The court overruled the motion to dismiss, and thereupon Suddath filed an answer in...
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