Baisley v. Baisley
21 S.W. 29
Mo.
1893
Check Treatment
Shebwood, J.

The fourth clause of section 2009, Revised Statutes, 1889, provides that: “When all the defendants are non-residents of the state, suit may be brought in any county in this state.” It will be observed that this clause is without limitation or restriction.

Suits then, that is, all suits, whether by proceedings in rem or in personam, are allowed to be brought in any county in this state against a non-resident, and the mere fact of the party’s non-residence, without more, is one of the grounds for an attachment. Ibid., sec. 521. From an early day in this state it has been ruled that one non-resident may sue another by attachment in this state. Posey v. Buckner, 3 Mo. 604; Graham v. Bradbury, 7 Mo. 281; though the statute concerning attachments contains no mention of non-residents as suitors in our courts.

*549When the action is commenced by attachment the suit must contain a summons to the defendant. Revised Statutes, 1889, sec. 538. Whether the present plaintiff was personally served with process in the attachment suit, does not appear; but if he was, then such service would authorize a general judgment against him; and the like result would follow if he entered his appearance to the action. Revised Statutes, ?1889, sec., 561. So that, if the contention of the defendant is to prevail, it would be perfectly competent for him to recover a general judgment against the plaintiff in his attachment suit, but very improper and illegal for the plaintiff to recover a like judgment against him in the libel suit.

In the recent case of Christian v. Williams, 111 Mo. 429, we held that where a person was attending court in this state in the capacity of party in a county other than that of his residence, that he might be sued in the county of the forum of his attendance, and that under the first clause of said section 2009, he was * ‘found’ ’ within the meaning of that clause, if the sheriff served process on him, and that in such circumstances he could not successfully plead to the jurisdiction of the court where he was thus served. In thus construing that clause'of the section, we gave the word found” its ordinary meaning, and we do not see why we should not do the like in construing the fifth clause of same section, and accord to its words their usual import and customary meaning. The defendant is a non-resident; being such, he may be sued in any county in the state; for so the statute provides, and it must control. The statute makes no exceptions, and we are not authorized to make any.

Besides, the defendant, by voluntarily coming into the state of Missouri, subjected himself to the jurisdiction of our courts; certainly so under the statutory *550provisions already cited. Mowry v. Chase, 100 Mass. 795 Murphy v. Winter & Co., 18 Ga. 690; 2 Freeman on Judgments [4 Ed.] sec. 566.

Again no authority goes to the extent of holding-that a person going into another state may not be sued just like an inhabitant of such state; and it is difficult. on principle to see why a non-resident may be validly-served with summons in a civil action a few days before-court convenes, and yet the service of similar process-be invalid the day after court convenes.

We think the better rule is that announced in Connecticut, where it is held that a non-resident party plaintiff who voluntarily attends court in that state is as amenable to ordinary civil process in another action, as if he were a resident. Bishop v. Vose, 27 Conn. 1.

II. But granting that the defendant is right in his. contention that the service of process upon him in this, action was invalid by reason of the matters set forth in his plea to the jurisdiction of the Chariton circuit-court, how can his contention prevail against the solemn judgment of that court deciding that plea and the matters therein contained against him! That judgment still stands unappealed from and unreversed, and therefore the matters contained in that plea have-passed in rem judicatam. 1 Herman on Estoppel, sec. 472; Dwight v. St. John, 25 N. Y. 203; Obear v. Gray, 73 Ga. 455; Hawk & Co. v. Evans, 76 Iowa, 593; Frauenthal's Appeal, 100 Pa. St. 290; Almy v. Daniels, 15 R. I. 312; Kaufman v. Schneider, 35 Ill. App. 256; Woolley v. Banking Co., 81 Ky. 527; 2 Black on Judgments, secs. 691, 692.

And the rendition of the judgment by the Chariton circuit court on the issue joined as to jurisdiction was-equally a bar whether correct or erroneous. Hagerman v. Sutton, 91 Mo. 519, and cases cited. ^¿When that judgment was rendered, the question of jurisdiction. *551was no longer at issue in the ease; this mnst he true or else the proceedings on the question of jurisdiction in the Chariton circuit court, inclusive of the judgment rendered on the defendant’s plea, only amounted to a judicial farce. If the defendant had been desirous of properly saving his exceptions to the action of that court, he should have filed his motion to set aside the judgment and for a new trial, and, upon that motion being overruled, he should have saved and preserved his exceptions! but even then the question of jurisdiction would stiu.1 have been res judicata in the Carroll circuit court; nothing but the revising hand of an appellate court could have corrected the error, if error there was, in the ruling and adjudication of the court of first instance. When, therefore, the- cause reached the Carroll circuit court, the question of jurisdiction being no longer an open one, there was nothing left for the Carroll circuit court to try but the cause on its merits.

III. But, aside from anything contained in the foregoing observations, all right to question the jurisdiction of the Chariton circuit court ceased when the defendant applied for a change of venue. This was such an appearance as waived proper service of process and admitted the jurisdiction of the court over the person of the defendant. Feedler v. Schroeder, 59 Mo. 364. And that court certainly had jurisdiction over the subjoqt-matter of the action, to-wit, over that class of cases.

ÍY. But further on that head: When, as already stated, the cause reached the Carroll circuit court, the cause was continued by “agreement of plaintiff and defendant to the next term of said court.” This too was tantamount to a general appearance by the defénthmt in the case. Bohn v. Devlin, 28 Mo. 319; Orear v. Clough, 52 Mo. 55; Peters v. Railroad, 59 Mo. 406.

*552The case of Higgins v Beckwith, 102 Mo. 456, holds nothing to the contrary of what is here asserted.

V. We reverse the judgment and remand the cause to the Carroll circuit court to be tried on its merits; as, for the reason stated,, the circuit court of Chariton county had jurisdiction of the parties, and, even if it had not, its ruling and judgment, no steps having been taken to set aside the same, were res judicata, and precluded all further inquiry into the question of jurisdiction.

G-antt, P. J., concurs, Bubgess, J., not sitting.