140 Mo. App. 605 | Mo. Ct. App. | 1909
This is a suit on several promissory notes. The merits of the cause were not inquired into, however, and the character of the action is only referred to for the purpose of determining whether the court was possessed of jurisdiction oyer the subject-matter. Defendant interposed a plea in abatement, challenging the jurisdiction of the court oyer his person. On a hearing, the court sustained the plea in abatement and gave judgment for defendant accordingly. Plaintiff prosecutes the appeal.
The testimony tended to prove that the plaintiff is a corporation, and was at all times, a resident of the city of St. Louis; while the defendant was and is a resident of Callaway county in this State. Defendant was temporarily in Pike county, probably visiting, and while there, plaintiff instituted this suit against him in the circuit court of that county. Defendant was properly served with process of summons, and as stated, at the return term, filed his answer which contained a plea to the jurisdiction of the court oyer his person solely. As stated, the evidence shows conclusively that plaintiff was at all times a resident of the city of St. Louis and the defendant was not a resident of Pike county, in
If this were the entire case, the ruling would have been proper, indeed, as has been decided in numerous cases. [Peery v. Harper, 42 Mo. 131; Thompson v. Bronson, 17 Mo. App. 456; Brackett v. Brackett, 61 Mo. 221.] There was an appearance by defendant touching the merits, however, and this fact invokes a rule of decision which must control the judgment of the court. It should nevertheless be suggested if this were a new question, that is, - if the interpretation of the statute above quoted was entirely free from adjudication by the superior courts of the State, it might well be said that it presents in this instance more particularly a question of venue than that of jurisdiction over the person, for it appears the statute commands that suits instituted by summons shall he brought, etc. In view of this language, it may be reasoned that no jurisdiction is conferred in the first instance thereby, except the suit shall be brought according to the venue therein designated. There are some authorities among our decided cases which point as though the court entertained such an opinion. For instance, in Perry v. Harper, 42 Mo. 131, the Supreme Court, in an opinion by Judge Wagner, employed broad language, indeed, touching the power
Later, the .case of Brackett v. Brackett, was presented to our Supreme Court. It is first reported in 53 Mo. 265, and on the second appeal in 61 Mo. 221. On the first appeal, the facts were insufficiently disclosed in the record to present the question now in judgment. The second appeal, however, in that case presented a state of facts in which it appeared neither plaintiff nor defendant resided in Pettis county, wherein the suit was instituted. It appeared plaintiff in
HoAvever, upon investigation of the authorities, it appears the doctrine has obtained in this State from an early date in respect of a proceeding in the circuit court to the effect that if a cause be one in which the court is vested Avith jurisdiction of the subject-matter, then the cause may proceed to judgment if the defendant by any act, submits to the jurisdiction of the court over his person. The doctrine of our authorities is that while jurisdiction over the subject-matter cannot be conferred by consent, jurisdiction over the person may be, if the court is otherwise possessed of jurisdiction of the subject-matter. In this connection, it is said the court is possessed of jurisdiction over the subject-matter if it is possessed of jurisdiction to hear and de
Now it appears that on a hearing of the plea in abatement the plaintiff introduced two records of the court in this identical cause. The first recites, in substance, that the parties plaintiff and defendant appeared by their respective attorneys, and by agreement of parties, the cause was reset for trial at the foot of the docket. The second order in the cause which was introduced in evidence on the plea in abatement is to the effect that the parties plaintiff and defendant appeared by their respective attorneys and by agreement -of parties, the cause was continued. These records import absolute verity and may not be controverted. In this case they are not controverted. It therefore conclusively appears that, notwithstanding the plea in abatement, the defendant appeared twice in the cause
As said before, there can be no controversy as to the jurisdiction of the court over the Subject-matter of the action. The question submitted for determination relates solely to the jurisdiction over the person of defendant. In keeping with the doctrine above stated to the effect that an appearance by the defendant to the merits of the action, in a case where the court is possessed of jurisdiction over the person, it has been determined that the filing of an answer to the merits of the cause confers complete jurisdiction over the person. [Wicecarver v. Mer. Town Fire Ins. Co., 137 Mo. App. 247, 117 S. W. 698; Thomasson v. Mer. Home Town Ins. Co., 114 Mo. App. 109; 89 S. W. 564; s. c., 116 S. W. 1092; McClure v. Paducah Iron Co., 90 Mo. App. 567.] So, too, it has been determined that the taking of a change of venue by a defendant from the court in which the case is pending, operates as an appearance to the merits of the action and confers jurisdiction over the person. [Feedler v. Schroeder, 59 Mo. 364; Spear v. Burlingame, 61 Mo. App. 75.] And likewise, an appearance in the cause for the purpose of setting a case at the foot of the docket by agreement operates to waive the matter of jurisdiction over the person of defendant and confers jurisdiction upon the court to proceed, if the court is possessed of jurisdiction over the subject-matter. [Orear v. Clough, 52 Mo. 55.] It has been decided, too, in several cases, that where it appears the defendant consented or agreed to a continuance of a cause from one term to another, this fact operates a waiver to the same effect and confers complete jurisdiction over the person of the defendant for the court to proceed to judgment. [Baisley v. Baisley, 113 Mo. 544; Peters v. St. L. I. M. & S. Ry. Co., 59 Mo. 406; Seay v. Sounders, 88 Mo. App. 478.] These
The judgment will be reversed and the cause remanded. It is so ordered.