The State ex rel. McIndoe v. Blair

• Decision Date: 16 December 1911
• Parties: THE STATE ex rel. HUGH McINDOE and A. W. THURMAN v. DAVID E. BLAIR, Judge
• Court: Missouri Supreme Court

142 S.W. 326

238 Mo. 132

THE STATE ex rel. HUGH McINDOE and A. W. THURMAN v. DAVID E. BLAIR, Judge

Supreme Court of Missouri

December 16, 1911

Writ awarded.

McIndoe & Thurman for relators.

(1) The claims of the Independent Powder Company and the Joplin Supply Company are founded upon an account against the Florence Mining Company, a corporation. The indebtedness claimed is not a direct charge against the defendant, Arthur Kennedy. The petition seeks to charge Kennedy on a personal obligation to the company and to the Joplin Supply Company and Independent Powder Company. It involves personal rights and obligations and a judicial determination of the rights of the Independent Powder Company and of the liability of the defendant, Arthur Kennedy, to the corporation. It involves an accounting of moneys paid by Kennedy to the corporation and the value of the corporate property. It requires a personal judgment. Such a judgment cannot be rendered except on personal service or personal appearance. It cannot be rendered on service by publication and the court has no jurisdiction to render any judgment on such service. Penoyer v. Neff, 95 U.S. 714; Smith v McCutchen, 38 Mo. 415; Wilson v. Railroad, 108 Mo. 588; Story on Conflict of Laws, section 639; Fitzsimmons v. Johnson, 90 Tenn. 424; Abbott v Shepherd, 44 Mo. 273; Elleson v. Martin, 53 Mo 575. (2) The only affidavit in the writ of attachment and in the order of publication alleged against defendant Kennedy is that Kennedy is a non-resident of this State. Section 575, Revised Statutes 1899, requires that the court or the clerk thereof "shall make an order directed to the non-residents or absentees, notifying them of the commencement of the suit, and stating briefly the object and general nature of the petition." The publication does not state the nature of the plaintiffs' claim, nor the object of the suit, and does not charge fraud, which is now sught to be established. Bobb v. Woodward, 42 Mo 482; Parker v. Burton, 172 Mo. 85; Winningham v. Trueblood, 149 Mo. 584. (3) The amended affidavit was filed after the publication was made and filed. The court had no right to amend or to permit amendment on constructive service. A judgment rendered upon such amended service would be void, as the defendant could not be held without notice of such amendment. Janney v. Spadden, 38 Mo. 395; Railway v. Atchison, 137 Mo. 230; Milner v. Shipley, 94 Mo. 106. (4) A stockholder cannot be held and cannot be rendered liable on a judgment on service of publication where the defendant resides outside of the State. The statute must be construed as only having application to residents of the State and those who may be served personally within the State. Wilson v. Railroad, 108 Mo. 588; Smith v. McCutchen, supra. (5) The courts of this State have no right or authority to order a non-resident to appear and interplead and litigate their respective rights to property or funds attached. Sheedy v. Bank, 62 Mo. 17; Shinn on Attachment, sec. 673; Wright v. Huck, 193 Mo. 130. (6) Section 987, Revised Statutes 1899, should be construed as applying only to residents of the State. Such statutes cannot be presumed to be binding upon non-residents. Connell v. Tel. Co., 108 Mo. 459.

J. W. McAntire for respondent.

(1) This action was brought under Sec. 987, Revised Statutes 1899, and is an action at law. Stone Cutter Co. v. Scott, 137 Mo. 527; Van Cleve v. Berky, 143 Mo. 109; Bank v. Gallagher, 43 Mo.App. 482; Shepard v. Drake, 61 Mo.App. 140. (2) Arthur Kennedy was liable for all unpaid balance of such stock, either at law or in equity. Van Cleve v. Berky, 143 Mo. 109; Stone Cutter Co. v. Scott, 157 Mo. 527; Banking Co. v. Mfg. Co., 168 Mo. 643; McClure v. Iron Co., 90 Mo.App. 578. (3) The affidavit was sufficient to authorize writ of attachment and order of publication, and is even amendable. Burnett v. McCluey, 92 Mo. 230; Avery v. Good, 114 Mo. 290; Tufts v. Volkenning, 122 Mo. 631. (4) The garnishee first disclosing in his answer a claim that the right to money in their hands had been assigned to Henry Knox, it was for their benefit that the order of publication was made as well as ours. R. S. 1899, sec. 3459; McKittrick v. Clemens, 52 Mo. 160; Swartz v. Riner, 66 Mo.App. 476; Goves v. Elliott, 65 Mo.App. 96; Schawacker v. Dempsey, 83 Mo.App. 354; Wilson v. Murphy, 45 Mo. 410; Groschke v. Bardenheimer, 15 Mo.App. 359. (5) The court has jurisdiction to try the issue as to whether or not the assignment was made with intent to hinder and delay creditors. Lee v. Tabor, 8 Mo. 322; Humphreys v. Milling Co., 98 Mo. 550; Eyermann v. Krickhaus, 7 Mo.App. 456; Straus v. Ayers, 34 Mo.App. 255; Joseph, Nolke & Co. v. Boldridge, 43 Mo.App. 337; Epstein v. Clothing Co., 67 Mo.App. 226. (6) Jurisdiction in attachment proceedings is acquired by the levy of the attachment regularly issued as this was by order of court in term time and is not ousted by the fact that the subsequent publication was not regularly made. Freeman v. Thompson, 53 Mo. 183; Kane v. McCown, 55 Mo. 181; Holland v. Adair, 55 Mo. 40; Johnson v. Gage, 57 Mo. 160; Shea v. Shea, 154 Mo. 606. (7) The authorities quoted by relators upon their claim that the order of publication is not sufficient to grasp the property attached, are not in point in this case. Of those cases, except Janney v. Pedden, all were actions under the tax law of the State to enforce the State's lien against specific realty, and in those cases it was held that a statement of the object and general nature of the petition which omitted the land against which the lien was sought was wholly insufficient; but the counsel of relators ignore the fact that there is a different rule which applies to attachment cases, and the well-settled principle of law is, in attachment causes, the jurisdiction over any given subject-matter is obtained by levy thereon of a writ properly issued; and no matter what or how great errors or irregularities may subsequently occur, the res remains still in the grasp of the court and its judgment in regard thereto will be valid and binding until reversed on error or by appeal or set aside in direct and appropriate proceeding for that purpose. Harden v. Lee. 51 Mo. 244; Freeman v. Thompson, 53 Mo. 194; Randall v. Snyder, 214 Mo. 32; Shea v. Shea, 154 Mo. 599. Prohibition will not lie in this case. (8) The circuit court had jurisdiction over the property of defendant, Athur Kennedy, by reason of the attachment of property in the hands of McIndoe and Thurman. It was first disclosed in the answer of McIndoe and Thurman that there is a claim of an assignment of the funds to Henry Knox. It then became the duty of the court to make an order on Henry Knox to come in and interplead under Sec. 3459, R. S. 1899. If the court had jurisdiction to do this, and it had jurisdiction over the property of Kennedy, impounded by attachment in this case, and also had jurisdiction over the persons of McIndoe and Thurman, it certainly had jurisdiction to try and determine the issues, and in such cases a writ of prohibition would not lie. State ex rel. v. Elkins, 130 Mo. 90; Railway v. Wear, 135 Mo. 230.

OPINION

In Banc

Prohibition.

WOODSON J.

This is an original proceeding instituted in this court, seeking to prohibit the circuit court of Jasper county from further proceeding with the trial of two certain causes pending therein, namely: The Independent Powder Company v. Arthur Kennedy, and The Joplin Supply Company v. Arthur Kennedy. Both involve the same issues in fact and propositions of law.

In order to correctly understand the questions here presented, it will only be necessary to set out the return of the respondent, and the report of the special commissioners appointed by this court to hear the evidence, etc. The petition for the writ of prohibition is very lengthy, and it will for that reason be omitted from this statement.

The return (formal parts omitted) is substantially as follows:

Admits that the respondent is one of the judges of the circuit court of Jasper county; that the Independent Powder Company of Missouri and the Joplin Supply Company are corporations, organized under the laws of Missouri; that on November 16th, 1905, each of said corporations instituted a suit and obtained judgments in said court, against the Florence Mining Company, a corporation, for the sums and amounts stated in relator's petition; and that on the day of 1906, the Florence Mining Company was duly adjudged a bankrupt, etc.

Respondent admits that on November 16th, 1907, both the Independent Powder Company and the Joplin Supply Company instituted suits by attachments against Arthur Kennedy, who was a non-resident of the State of Missouri, by petitions which were substantially as follows:

"Comes now the plaintiff and states that it is a corporation organized and existing under and by virtue of the laws of the State of Missouri, and that the defendant Arthur Kennedy is a non-resident of the State of Missouri and resides in and is a resident of the State of Pennsylvania.

"Plaintiff for its cause of action states that at the dates shown by the itemized account hereto annexed, at the special instance and request of the Florence Mining Company, a corporation, it sold and delivered to said corporation certain goods, wares and merchandise of the value and for the price of $ 2706, the items of which, as well as the dates when the various articles were sold and the prices charged therefor respectively, appear from the bill of items hereto annexed marked 'Exhibit A.' Plaintiff states that the prices charged therefor were reasonable, and that the said corporation promised and agreed to pay the same, but failed to do so. That thereafter, on the day of , 1906, this plaintiff sued said corporation in the...