Thomasson v. Mercantile Town Mutual Insurance Company

• Decision Date: 02 October 1905
• Parties: THOMASSON, Respondent, v. MERCANTILE TOWN MUTUAL INSURANCE COMPANY, Appellant
• Court: Missouri Court of Appeals

89 S.W. 564

114 Mo.App. 109

THOMASSON, Respondent, v. MERCANTILE TOWN MUTUAL INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

October 2, 1905

Appeal from Dunklin Circuit Court.--Hon. Jas. L. Fort, Judge.

AFFIRMED AND CERTIFIED TO SUPREME COURT.

Judgment affirmed.

Barclay & Fountleroy and Walker & Cox for appellant.

(1) The trial court did not acquire jurisdiction of the person of defendant for several reasons, the first of which is: Because the law requires the service of the original petition and summons to be made on the "president or secretary, or other chief officer in charge of the principal office of such company, by the acting sheriff of the county in which such company may have its principal office." Neither the petition nor the return nor anything in the case shows that the service was made upon any officer in charge "of the principal office of such company" as required by law. R S. 1899, sec. 8092; Vickery v. Railway, 93 Mo.App 1. (2) Returns of this kind are strictly construed. The essential facts must appear affirmatively or no jurisdiction attaches. Blanton v. Jamison, 3 Mo. 52; Haley v Railroad, 80 Mo. 112; Gamasche v. Smythe, 60 Mo.App. 161; Laney v. Garbee, 105 Mo. 355, 16 S.W. 831; Rosenberger v. Gibson, 165 Mo. 16, 65 S.W. 237. (3) The court had no jurisdiction of the subject-matter so far as related to the insurance on the hay, grain and farm utensils, and the amounts of insurance respectively claimed upon each of those items, because the petition does not allege that those items were destroyed by fire in Dunklin county, which allegation was necessary to give the circuit court of that county jurisdiction over the subject-matter of those items, and therefore the finding for $ 654 was erroneous as matter of law and would not warrant the judgment. Wright v. Ins. Co., 73 Mo.App. 365; Todd v. Ins. Co., 1 Mo.App. 472; R. S. 1899, sec. 602. (4) The want of jurisdiction was set up in the answer of defendant. The fact that the answer furthermore contained a second defense, in the form of a plea to the merits, was not a waiver of the plea of want of jurisdiction over the person of defendant, still less as to the subject-matter. The latter defect is never waived. R. S. 1899, sec. 602; Henderson Case, 55 Mo. 534. Little v. Harrington, 71 Mo. 390; Byler v. Jones, 79 Mo. 261; Cohn v. Lehman, 93 Mo. 574, 6 S.W. 267; Nichols v. Stevens, 123 Mo. 118, 25 S.W. 578, 27 S.W. 613; Christian v. Williams, 111 Mo. 429, 20 S.W. 96.

Ely & Kelso for respondent.

(1) "Wherein accordance with his right, a defendant wishes to raise the objection that the court is without jurisdiction over his person he must, according to the weight of authority, limit his appearance to that single question, or he will be deemed to have waived the objection. Such special appearance may be made at any stage of the proceedings, without making any other appearance in the cause, provided it is the first step taken therein." 3 Cyc. Law and Procedure, page 511. Tower v. Moore, 52 Mo. 120. (2) Appellant says that it united in its answer a plea to the jurisdiction in this case, with a plea to the merits; and insists that a plea to the merits was not a waiver of jurisdiction and that the court never acquired jurisdiction of the person. The only question presented was a defective return. Appellants insists that such a doctrine finds support in the following authorities: Little v. Harrington, 71 Mo. 390; Byler v. Jones, 79 Mo. 261; Cohn v. Lehman, 93 Mo. 118, 6 S.W. 267; Christian v. Williams, 111 Mo. 249, 20 S.W. 96.

NORTONI, J. Goode, J., concurs; Bland, P. J., dissents.

OPINION

NORTONI, J.

This is a suit on a policy of insurance against fire. Plantiff recovered judgment therein and defendant appeals to this court. The bill of exceptions preserves none of the evidence. The only questions for review here are, first, the matter of exception pertaining to the ruling of the trial court on defendant's plea in abatement, wherein it was contended that the sheriff's return to the summons failed to show that the court had acquired jurisdiction of the person of defendant and, second, the matter arising on the record proper as to the sufficiency of the allegations of the petition. The facts will appear in the opinion.

The return on the writ of summons is as follows:

"Executed this writ in the city of St. Louis, Missouri, on the within named defendant, the Mercantile Town Mutual Insurance Company (a corporation) this 13th day of April, 1903, by delivering a copy of the writ and petition as furnished by the clerk to J. W. Daugherty, secretary of the defendant corporation, he being in said defendant's usual business office and in charge thereof. The president or other chief officer of said company could not be found in the city of St. Louis at the time of service.--Joseph F. Dickman, sheriff, by Wm. Cahill, deputy."

It is contended by defendant that the return is insufficient inasmuch as it is therein certified that the service was had in defendant's "usual business office" instead of the "principal office" of such company. The statute in that behalf is as follows:

"Suits may be instituted in the circuit court of any county in this State where the cause of action originated against any company operating under the provisions of such article or where such company has its principal office, and whenever any suit shall be so instituted against any such company, a certified copy of the original petition and summons shall be served on the president or secretary, or other chief officer in charge of the principal office of such company, by the acting sheriff of the county in which such company may have its principal office. If such company have its principal office in the city of St. Louis, then the acting sheriff of the city of St. Louis shall serve the process herein mentioned. And service when so made and proven by the return thereof, shall be deemed service on any such company proceeded against." [Sec. 8092, R. S. 1899.]

The cause of action originated in Dunklin county. Service was had in the city of St. Louis, presumably because the principal office is in that city. This fact is not shown, however, in the return. The return states that the service was at the "usual business office" of the company in St. Louis. The statute quoted enables service to be had in St. Louis, if the cause of action originated elsewhere, only by serving the president, secretary or other chief officer in charge of the company's "principal office." The return shows the secretary in charge of its "usual business office" was served. That might be at a place other than its principal office. The company might have had its principal office outside of the city of St. Louis and business offices in such city, or it may have had its principal office in St. Louis and other business offices there which would come under the category of "usual business" office.

It is apparent that the return in this case does not show good service under the statute quoted. It is insisted, however, by respondent, that the defective service was waived by the appearance of the defendant to the merits of the cause in the trial court. The record before us shows the following in this respect. Omitting caption, the answer is as follows:

"Defendant appearing specially, by its attorneys, for the purpose of this answer and for no other purpose, avers that this court has no jurisdiction over the person of the defendant in this cause. Wherefore, defendant prays that this action be abated and for its costs.

"2. Without waiving the aforesaid plea in abatement, defendant appearing specially as aforesaid, for answer to the plaintiff's petition, denies generally, each and every allegation thereof."

Upon this answer the court first heard the evidence on the plea in abatement and found the issues against the defendant. The case then coming on to be heard on the merits, the defendant's counsel immediately withdrew and participated no further therein. Plantiff proved his cause, at least we presume so from the fact that the finding and judgment were for him. The evidence on the merits is not before us in the bill of exceptions. After the finding on the merits against it, the defendant appeared specially and filed motions for new trial and in arrest of judgment, alleging that the court erred in its finding on such plea in abatement. There was no motion to quash the return for insufficiency appearing on its face and the matter was raised in no other manner than by the answer above quoted, which answer also contained a general denial. Respondent contends that by thus answering with the general denial, appellant appeared to the merits of the case and thereby waived its right to complain of the defective service shown by the insufficient return. Replying to this, appellant insists that under our system of pleading, it was bound to include in one answer every matter of defense it had, therefore it did not waive the plea to the jurisdiction by its pleading to the merits. Our Supreme Court in the very recent case of Newcomb v. Ry. Co., 182 Mo. 687, 81 S.W. 1069, has settled this question conclusively, so far as this court is concerned. The court said:

"It is true that under our system, a plea in abatement is not waived by a plea in bar in the same answer and the defendant must include all of his defenses in one answer. But the insufficiency of this return was not a point to be presented by the plea at all; it was out of place in the answer."

The conclusions reached in that case are that the insufficiency when appearing on the face of the officer's return, is a matter to be reached by motion and not by answer. In this case, the defendant might have made its special appearance for the purpose of the motion only and...