105 Ark. 488 | Ark. | 1912
(after stating the facts). The record shows that the circuit court of St. Louis is a court of general jurisdiction, and had jurisdiction of the subject-matter, and the only question presented for our decision is whether or not the finding and judgment of the circuit court of Missouri, holding that it had obtained jurisdiction by a proper service upon appellee, is res judicata.
The appearance of the appellee in the Missouri circuit court for the purpose of quashing the sheriff’s amended return of service of summons in that cause gave that court jurisdiction of the person of appellee for the purpose of quashing service, not only upon the ground stated in the motion, but upon any other ground that the appellee might have presented. The appellee, upon filing the motion to quash the service of summons, could have brought forward any grounds that it saw fit to allege other than that set up in the motion as a reason why the service should be quashed. The issue raised by the motion to quash was whether or not the service of summons should be quashed.
The appellee, having appeared in the circuit court of Missouri for the purpose of quashing ‘the service, is estopped not only from setting up the reason for quashing the service alleged in the motion, but also any reasons that it might have set up as grounds for quashing such service. The issue raised by the motion was, whether or not the Missouri circuit court had jurisdiction of the person of appellee, and it was the duty of the appellee, when it questioned that jurisdiction, to bring forward any cause that might have existed showing that the court did not have jurisdiction of the person of appellee. Not having brought forward such matters then, it is estopped from taking advantage of them in a subsequent proceeding to test the jurisdiction, and the judgment of the court on that question, whether right or wrong, is not subject to collateral attack on review by the circuit court of another jurisdiction.
“The judgment of a court of competent jurisdiction operates as a bar to all defenses, either legal or equitable, which were interposed or which could have been interposed in the suit.” Church v. Gallic, 76 Ark. 428.
The doctrine of res judicata is correctly announced in 23 Cyc. pp. 1295-6; Cromwell v. Sac County, 94 U. S. 351-2.
“The rule is often stated in general terms that a judgment is conclusive, not only upon the question actually determined, but upon all matters which might have been litigated and decided in that suit; and this is undoubtedly true as to all matters properly belonging to the controversy and within the scope of the issues, so that each party must make the most of his case or defense, bringing forward all his facts, grounds, reasons, or evidence in support of it, on pain of being barred from showing such omitted matters in a subsequent suit.” See cases cited in note, 23 Cyc. pp. 1295-6, supra.
Until the appearance of the appellee in the Missouri court to quash the service of summons, no issue was raised by it. It was not before the court at all for any purpose, unless it had been properly served with process; and while it was the duty of the circuit court of Missouri to examine the service to determine whether it had jurisdiction of the person of appellee, there was no issue on that question raised by the appellee. But when appellee appeared and moved to quash, it distinctly raised that issue, with all the reasons that were, or could have been, urged as to why the circuit .court had not acquired jurisdiction of the person of appellee.
In Hubbard v. American Investment Co., 70 Fed. 808, the court said: “The question of the jurisdiction of that court (a State court of Colorado) was raised and presented to that court for decision. It thereupon became the duty of that court to hear and decide the question of its jurisidction, and it was open to the defendant to then and there present every question of law and fact upon which it relied to show that the court was without jurisdiction.”
Appellee, having elected to submit the issue as to whether the circuit court of Missouri had jurisdiction of its person to render the judgment sued on herein, is bound by the judgment of that court on that issue, so long as same stands unreversed by the courts of Missouri.
As was said in Newcomb v. New York Cent. & H R. R. Co., 81 S. W. 1069: “If the defendant .was of the opinion that the return was not sufficient to bring it into court, and had confidence in its own opinion, it could have remained away and let the plaintiff take his course. That was a station in the progress of the case where the law requires the party to rely on his own judgment and take the risk of being sustained in the end.” See also other authorities cited in appellant’s brief.
It follows that the court erred in admitting the testimony of Ike Felsenthal. For. this error the judgment is reversed, and the cause is remanded for a new trial.