*1 op Missouri, Vol. 316. Manufacturing Thomas P. Hall Company, Appellant. v. Wilder S. W. 760. One, February 16, Division 1927. Foreign 1. JURISDICTION: Of Judgment: up- Court: Suit on Determined Hearing: Adjudicata. on Full brought Res The doctrine is that in a suit upon judgment in one State State, rendered in another jurisdiction rendering may challenged. doctrine is the result of the harmonious co-existence and relation of the due-process and full-faith-and-credit Constitution, clauses of the U. S. to
the effect that what is done due-process in violation of the clause is not entitled to be enforced under the full-faith-and-credit clause. But there is exception general doctrine, to that question and it is that where the jurisdiction brought over the defendant was into direct issue in the State, adversely court of the other upon and was determined to him evidence by parties, appeal submitted and adjudication, both he did not from the and judgment further against upon was there later rendered him the merits without contest, cannot, brought he when suit is on such in this State, thus cannot be again, question jurisdiction, being raise the same issue but the pointedly fully adjudicated, by raised and defendant, and submitted to reopened, adjudicata. accepted but must be as res Doing Foreign -: Test: 2. cess. The Business in State: Local Law: Pro- Due question jurisdiction whether the New York court obtained over by corporation, upon agent employee a Missouri service its or reality question doing was in whether defendant was there business subject ordinary alleged there in such sense as to be to suit debt process State, question by and amenable whether issued courts and doing defendant was so was not law business there one of local statutory construction, process but one of due law under the Constitution jurisdiction test York court’s is not of the United States. The of the New intrastate, jurisdiction was interstate or nor is its whether the business to be by prescribing the conditions under determined New York statutes State, question foreign corporation do business but which a clause, .by due-process jurisdiction and if the be determined process law full-faith-and-credit due was not afforded judgment against require him render the Missouri court to does not clause by But York court. rendered the New upon where foreign an exhibition of jurisdiction court, over power its to determine with the New by State, doing was asked corporations in that business State, doing and whether on in that business it was whether determine by pro- over it service ground had obtained court, there, agent evidence submitted and the both cess- jurisdiction, defendant abided and parties, that the it did have determined law in any question longer of due adjudication, there is no monetary judgment cannot, upon the sued case, when and defendant question contest, same have the against it without later same full-faith-and- adjudicated but the Missouri evidence question. foreclosed has credit clause judicial determina- proper Adjudicata. aWhere -: Res legal proceeding hear finally in a issue, directly determined put tion a court the and determine authority competent having con- final and deemed will be determination question, its decision litigation between privies, further in all parties and their upon the clusive them in judgment remains long arises, as the same 1026} Mfg. Hall WildbR
unreversed or is not having otherwise set aside. The defendant invoked a direct determination of the over it in the New general jurisdiction having York court of hearing upon had a full question is not having permitted stand, an adverse decision-to that decision subject attack, given to collateral but the same must be to it effect *2 given courts, as would be in New and the York same force and effect as given by would it had been rendered a Missouri court. it Question -:4. -: applied Collateral Attack: of Law. The rule upon judgments applied to collateral attack domestic is to collateral at- judgment Notwithstanding tack a of a sister State. the facts jurisdiction depended undisputed, which a the of the court of the sister State theory indulged its collateral attack cannot be on the that jurisdiction wrongfully of its was one of law and the court law, parties law, the construed issue evidence submitted defendant abided where the were afforded due the directly contested, pointedly upon' was and the court expressly jurisdiction, decided that it did have and the by rightly wrongly that the decision. Whether or law, interpreted completely adjudicated, applicable the and adjudicata. became decision res Unliquidated 5. COUNTERCLAIM: Demands: Non-Residence. In an ac- law, account, although by way tion an action at on an n equitable relief, tract, arising is entitled to set off demands of his own out of con- justice liquidated unliquidated, whether in such manner as will do ground parties; plaintiff is between the for the allowance of an and non-residence of the a sufficient equitable set-off. Assignment: Party Foreign Judgment: 6. -: The defendant is a Missouri in Interest. Action on by corporation, York in was sued New. given acceptance corporation a trade for merchandise sold of that State on by Judgment having it rendered in favor of the to defendant. been corporation $2,371.10, in a Mis- it filed suit thereon sum present plaintiff, assigned to souri and thereafter al- Defendant in its answer as in its stead. who was substituted preventing.it purpose leged from real upon certain assignment made for the had been that the corporation counterclaim; asserting that the New York its counterclaim, interest, proceeded up based party to set its and then alleged corporation sale it of a contract of said an breach damaged defendant, whereby the defendant merchandise to plaintiff’s out $5,016.10. strike sustained motion The court the sum of n designated the counter-demand answer The or set-off. the counterclaim for was one counter-demand The and as a set-off. a counterclaim both alleged New York damages, failure unliquidated corporation based agreed upon, articles of furnish, certain the time within it, from purpose, specified ordered designated character for ways ex- incurred the defendant whereby, alleged, various first, Held, action that the is basis on pense suffered loss. as a counterclaim one allowable assignee, demand is not the defendant’s an under against cause existing defendant and favor of the statute, not because statute, be- second, under the not set-off plaintiff; it is damages, the de- defense to unliquidated is not a for it is a claim pleaded well facts third, admits the itself; strike out motion to that the mand corporation among New York counterclaim, -the others in real equitable equity fourth, allow interest; party in them; independently set-off, exists buff statutes of is not based set-off only assignee admitting effect fifth, out strike the. motion to is suf- plaintiff in interest real non-residence plaintiff, the a nominal 'sixth, that, and, set-off; while equitable anof allowance ground for ficient equitable proper relief law, calls for answer one at plaintiff’s action right de- circumstances equity, and under changes to one op Vol. 316. Missouri, fully right up prove showing equitable facts to an fendant set by striking foreclosed out the counterclaim. set-off should Law, J., 1012, Juris-Cyc. Corpus 12 C. Section Constitutional References: Courts, J., 170, p. 851, Judgments; 1238, Section n. 69. p. 58 New. 15 C. n. New; 1312, 902, 717, p. 1100, p. J., n. n. Section Section C. Section 1145, Pleading, n.'72; 1618, 1144, p. p. n. 87. n. p. Section Counterclaim, p. Cye., Recoupment, p. 616, Cyc., Set-Off and n. 746, m 66. City of St. Louis.—Hon. William Court of Circuit Appeal from Judge. Wilson, A. and remanded.
Beversed
appellant.
Anderson, Gilbert &
Wolfort
(1)
Amendment
Fourteenth
violates the
The Supreme
United States.
Court of New York
Constitution of the
Manufacturing
Company;
had
over the Wilder
*3
doing
Hyde,
company
in New York.
v.
was not
business
Harkness
8;
476;
Wayne
98
204
McDonough,
U. S.
Old
Life Assn. v.
U. S.
189;
Morning News,
Menefee,
Goldey
Mills v.
237 U. S.
Biverside
v.
518; Conley
Works,
406;
156
S.
v. Alkali
190
v.
U.
ü. S.
Kendall
Loom,
477;
Spratley,
198
Am. Automatic
U. S.
Mutual
Com.
Life v.
602;
Bailroad,
App.
172
S.
v.
253;
Kimball,
U.
Painter
127 Mo.
In re
(2)
155
862.
Manufacturing
N. Y.
Activities of Wilder
Com-
Toy
at the
Fair in
pany
New York did not
doing
constitute
business
Cheney
Massachusetts,
153;
York.
v.
246 U. S.
Green v.
530;
Burlington, 205
S.U.'
Eastman v.
Co..,
336;
Vehicle
195 S. W.
Putney
338;
60
Edwards,
Sup.
Shoe Co. v.
Pa.
Ct.
Brookford Mills
Baldwin,
App.
553;
154
Div.
Gilmer Bros.
Singer,
Co. v.
149 N.
V.
195;
Supp.
Mergenthaler
Hays,
Y.
Co. v.
182
App. 113;
Mo.
Lobe
v.
Co.,
Star & Herald
187 N. App.
175;
Y.
Div.
Cody
Co.,
v. Motor
196
(3)
Judgment
foreign
Fed. 254.
of a
collaterally
state can be
jurisdiction.
for want
attacked
If
there is no
it is
Pennoyer Neff,
714;
void.
95
Hennings
v.
U. S.
v. Ins. Co., 28 Fed.
444;
Kimball,
62;
In re
155 N. Y.
Central Exchange v. Hammond,
463;
Wayne
125 Fed.
Old
Life Assn. v. McDonough, 204
8;
U. S.
Menefee,
Biverside Mills v.
Grant mixed awas sufficiency of service (1) The litigated a court has once been Where a matter of law and fact: permitted in party will not be losing jurisdiction the competent party, even matter with same litigate the same another court to first might have been committed though error will losing party not be in a suit on a So also instance. of the decision collaterally correctness permitted to attack by appeal only directly or attacked original That can case. Buckingham, v. original Tootle proceeding. in that writ of error Kempf, 195; Harding Harding, 198 U. LaEue v. 190 Mo. v. S. Capewell, 59 Fted. 970. The App. 70; Sipe Í86 Mo. proceeding. Bais- the same cannot even tried twice Eailroad,
ley Baisley,1 Newcomb v. Mo. validity appear and Where the defendant does not contest service, any judgment'is against may in him, he other validity proceeding service, was done properly attack the Pennoyer Neff, 95 U. appellant, S. cited whether that by publication only other service service nature personal Where, however, appears, ques he and contests service. jurisdiction, decided, if question, tion of once becomes final unappealed Baisley Baisley, supra, citing: Hagerman from. *4 Sutton, though judgment 91 And Mo. true even 519. this is joined (2) on issue as to was The sub erroneous. Bogert Hopper, 1354, 1919, stitution of Hall for & under Sec. E. S. 81 mandatory. 337; Spurlock was Childs Thompson, v..’ Mo. 86 Sproule, Mo.'503; Eitter,. 287; Mo. Springfield Coe v. to use Weaver, complete 650. So is Mo. this substitution that given by original on a sureties cost bond plaintiff discharged judgment when the against substitution made and a for costs nullity. parte sureties an absolute Ex Eay, and James 59 Mo. therefore, plaintiff Hall, 280. As was a new and as the defendant against Hall, had no counterclaim therefore was required the court strike out motion, defendant’s counterclaim on because under the must statute counterclaim in favor the defendant and against plaintiff. Sec. E. S. 1233, 1919. The cause of action pleaded in unliquidated an defendant’s answer is one for damages for breach of Therefore, against contract. cannot be set off plain op Missoubx, Von. SUPREME Couet been, if might off though, it have set action, even
tiff’s cause
plaintiff,
1293,
for
S.
Sec.
R.
to be
original
had continued
against
unliquidated
claim
setting off
not
provide
1919 does
8;
Campbell,
App.
Est. Co.
Brokerage
Mo.
assignee.
App.
Stone, 181 Mo.
App.
Volker v.
Co.,
v. Arms
(3)
Di
Co.,
Appellate
P.
316 .Mo.—52. *6 op Missouri, Vou. to be for- by deponent is taken fair every at said taken order Company Manufacturing at St. Wilder tbe office of the
warded purchaser there and the credit St. Louis, at Louis filed binding fair is final at no order taken approved, and . ap- purchaser and the credit been'accepted until same has Louis. proved company’s office St. at the ‘‘ of New activity State his within the Deponent further states completely Manufacturing Company is the Wilder behalf of foregoing portion of this affidavit. described years during he has the six which that within “He further states Company Manufacturing that com- Wilder been connected with the York, nor agent within the State of New pany has had no office or York, except any within State of business has transacted above, Toy at the annual Fair. activities described those which is referred “Deponent further states that the merchandise aforesaid, to him as complaint, to in the which delivered Manufacturing Company; Wilder ordered mail at ordering posted letter the same was written in St. Louis and St. Louis, acceptance which is in the said com- that the referred to plaint payable at Merchants Bank in Laclede National St. Louis.” Bogert
The plaintiff, Hopper, Inc., support service, & filed the P. Hall, attorney, deposed affidavit Thomas its who as follows:
“That company, deponent defendant is informed and be- lieves, has hired their use, exclusive at the Hotel Im- room. perial, City. N. Y. deponent
“That called at said sign room and saw the above the door, Manufacturing ‘Wilder Company,’ George and also saw one A. Bauer, employee of said company, charge of said room and the mei’chandise exhibited for sale therein.
“Deponent also has seen advertisements the defendant com- pany in trade papers advertising complete toy their line of merchan- at dise Imperial, deponent Hotel is informed that said fair opened on day the first of February, 1921, and pe- continues for a riod of weeks, six deponent has received from said Bauer at Imperial said Hotel catalogue this month illustrated of defendant’s merchandise and saw a catalogues number of there, other which ’’ apparently were for distribution for purpose obtaining orders. The support further of its motion filed the supple- mental affidavit of said Bobe, after statement he had executed the former affidavit, further ran as follows: “That Wilder Manufacturing Company temporarily rented room 239 Imperial only during’ Hotel period Toy Fair, for the purpose sole exhibiting its as samples merchandise and not for Mug. Wilder Hall Manufacturing had Company Wilder That the sale. purpose oí Manufacturing Company’ small se- sign reading ‘Wilder paper manner room in same door temporarily above the cured ’’ Toy Fair. at the as did other exhibitors affidavits was sustained being upon these motion submitted appeal there- Bogert Hopper, Inc., took trial & *7 Supreme Court, where the or- Appellate Division of the from to the De- sustaining was and set aside. motion reversed der defendant’s appear, and therefrom, and did not further appeal fendant took no Bogert Hopper, in of & was rendered favor thereafter against defendant. Inc., and Coming
I. in is of the first consideration this case the effect jurisdic- express adjudication fact by of the New York court that original tion in of the defendant had been The obtained the suit. doctrine, brought judg- that in in a suit one State jurisdiction by State, ment of of a court another the the rendering may is challenged, court such be Jurisdiction. no-¡. by plaintiff. disputed counsel for is set- Such Fore, 1113, 1144; 69; tled Marx Mo. Stuart doctrine. C. J. v. 51 [34 Dickinson, 290516; Pennoyer Neff, 714; U. v. 95 S. Riverside v. Dan Menefee, River v. 237 U. Cotton This doctrine Mills S. 189.] is the of result the harmonious co-existence and relation established by provisions, decisions, between the of 1 IY, Section of Article 1 Section XIY Article of the Amendments to Constitution of the opinion United States. As is stated in substance in the in the Riverside-Mills case: That which was violation of done due-process clause, is entitled to be enforced under the full-faith- and-credit clause. this case there is question the fact that of the of the New York Court over the defendant was directly brought in issue defendant and was de termined parties evidence submitted ques tion, and defendant appeal did not ruling from the adverse the appellate Thereupon, division. plaintiff say counsel for question York New over the, render upon, sued settled, was and that such ad judication bars a reopening from question, or, of that under the clause, precludes full-faith-and-credit this court from con sidering and determining that issue. conceded counsel for if appeared defendant had not specially in the New York court and question raised jurisdiction, prop would try er to validity service the instant case. The whether the court had over defendant, was, in reality, whether the defendant doing York, business New in such a subject sense as to to or- op Missouri, Yol. of. courts process issued
dinary suit, and amenable
could
New York
shown,
the circumstances
State. Under
doing
only
original
if the
jurisdiction in
case
jurisdiction of that
to the
make
amenable
there, so as to
business
court,
it.
that issue.
evidence taken was devoted
business,
not one
doing
question whether defendant
of,
process
construction,
one of due
statutory
but was
local law or
f
v.
[Frawley
States.
United
o law
the Constitution
under
(C. A.)
259;
Copwell,
Fed.
C.
Co.,
Sipe
Casualty
Pa.
Fed.
259;
970;
Co., 220 Y.
Barrow Steam
Susquehanna Coal
Tauza v.
N.
Ct.),
(N.
Sup.
ship
Kane, 170
S.
Howard
Smith
Y.
Co. v.
U.
Ry.
DeBow, 148 Ga.
Vicksburg
Co. v.
Spencer, 131;
Jones
corporation
Ry.
“Whether
Co.,
Booz Texas
Ill. 376.]
jurisdiction,
and in
doing
State is a
business
analysis it
of due
the Constitu
its last
is one
law under
Oregon
tion
the United States.”
Wisconsin Cattle Co.
[North
Co., 117 W. l.
only
Short Line
N.
c.
“But
it is
when the
foreign
doing
corporation
business
the State that service
questions
be made
and in
with
agent,
connection
*8
jurisdiction
‘doing
question
is
it
held that what is
business’ is a
law
due
under the
Grant v.
Federal Constitution.
Can
Co.,
App.
576; Conley
N.
Works,
anea
117 Y.
Div.
Mathiesen Alkali
Co.,
It conceded that a of the defendant did not general a appearance constitute action, to the jurisdiction nor confer person over the of defendant. The contention express adjudication adjudicata, is res reopened and cannot be by defendant. It is conceded, urged by indeed it is for plaintiff, counsel that de- fendant could appeal taken from the decision of the appel- division, late appeal without constituting a appear- support ance. In of their judgment contention that the can be at- tacked, notwithstanding proceeding had on motion, counsel for defendant cite v. Smith, Howard Spencer Jones and (N. Y. Ct.) Sup. Jasper and Bank of v. First Nat. Bank, 258 U. S. Howard Smith was brought a suit in New judgment against rendered the defendant in California. There was Mfg. Hall Wildee court before California in tlie special appearance of no specially, appeared he was After it judgment was rendered. ground that on the judgment sought to relieved and court, for person appearing him; that the over had tak- unauthorized; evidence was court him the California for him. appeared had who authority of those impeach the en to judgment, which on the Upon the suit was denied. application The it would be held York court face, upon its regular Cal- although appearance in that, unjust to hold oppressive by was bound unauthorized, ifornia was rendered, where it was court get opened could he until it to be so him show nullity, it sufficient that, if it was a denial It was held be enforced. attempted when it question of make the judgment did not to set aside the of the motion adjudicate,. res in the instant case and this between that distinction ap special foreign corporation, and made its case the defendant is adjudication of the pearance and had an proceeded final judgment before the Hanna v. Sted We also in this connection the case
merits.
notice
man,
In there had been ren Hanna Stedman proceeded prior action, in a a court of New York dered against certain non-resi judgment upon publication the notice theory pro That went that the dent defendants. complaint ceeding had was one rem. The bill of the cause some qualities inter-pleader. theory was on a bill of money defendants, officials certain assessed and collected of a specific association, life fund for certain bene insurance constituted policy. Subsequent judg ficiaries under a to the rendition of that ment, Maryland, involving broug’ht an action was in a subject. parties rights same their in the same the action in *9 Maryland, judgment up Mary New York was set a bar. The as York; land court that res was in New determined not that the judgment, New York court had no render the and proceeded original to render its and controlling own parties. subject Later, between the suit, Stedman, in the action court, brought of Hanna v. New judgment, the first an inquiry that court entered into as to Maryland of the and the New York court which had judgment, first to determine which was the controlling judgment. The conclusion reached was founded upon undisputed determination that under the facts and form of action, the proceeding rem; was not one that as a fact the res was not in York; New prior that New York court was of op Vol. Missouri,
822 Maryland was valid court judgment of effect, that the 335) (230 Y.N. l. c. opinion of the controlling. In the course argued that thought and however, to be “It, seems it said: pending the action now that though should be determined it even jurisdic permitted in rem which was not one York court in the New by publication, service party to secured tion a non-resident an action was it was such of that still decision escaped Maryland by the not be binding adjudication which could necessary ju so as to a This course court. fact confer jurisdic acquire powers A cannot even of risdiction. by asserting determining it It cannot merely it or exists. tion person by asserting finding his jurisdiction of the resi acquire conclusively undisputed facts show within the State when dence purpose acquir And for the him to be a it cannot non-resident. ing jurisdiction through of the summons a non-resident service publication the cause of and determine that action before it assert jurisdiction by permits is of a character when service conclusively it is not such an undisputed facts show one. The jurisdictional nature of the action in such a case is facts juris the court cannot determine its favor the existence support diction nothing [O’Donoghue when there is such view. Boies, v. 87, 97-99; Risley 159 Y., N. Y. v. Phenix Bank of N. 337; Pennoyer N. 318, Neff, Y. 714, 95 U. S. Thompson v. Whitman, 463, 469; Wall. National Exch. Bank of Tiffin v. Wiley, 257; Haddock Haddock, U. S. Reynolds U. S. Stockton, S. 254, 264, 140 U. 265.]” Holding that view York court examined the sources grounds Maryland court and of the other New York court, and reached its conclusion therefrom Maryland that the judgment was valid. original held that action in the New York court lacked all proceed- the fundamental of a characteristics ing in doing rem. Appellate reversed the decision of the Di- (185 vision App. 491). Div. Appellate Division had said that Maryland merely suit had asked that court to pronounce a contrary decision to the decision of the New York court upon the facts, same and held Maryland court could not so; do prohibited adjudicata. the rule of res Bank Jasper Bank, First National U. S. pro -was a ceeding in certiorari. The Bank, First National Georgia corpora tion, was indorsee of deposit certificates of made the Bank of Jasper, a Florida corporation, brought, suit thereon in the Fed eral district court of Florida. The bank of Jasper in bar of the action, up set the decrees of the State circuit court of Florida brought against actions both banks, and certain parties, other wherein the certificates had been void, held and an order and decree *10 Meg. .Co. Haul Wilder a trust Jasper with of Bank in the deposits the impressing made The courts. State in the actions to plaintiffs the of in favor of Court The Circuit plea. the sustained district Federal Supreme The court. district the 83) reversed (264 Fed. Appeals Court, the Circuit of the action affirmed States the United Court in the State court action the service notice or The Appeals. specially appeared Bank National First by publication. ’ Its court. the State the action, and attacked It failed that issue. appealed on overruled motion and.it Supreme Court .The appearance. appeal, and made no further service, quash refusing to the lower sustained the Florida Supreme decree. The entered the afterward lower court and the appeal question whether the pass the Florida did not Court purpose It of the statute appearance. said the as a operated notify to residents by publication authorizing notice constructive case, if they into the they do so could come if cared so.that the statute right non-resident there was no followed object right if had his notices; quash the the non-resident against him. The facts as be. thereafter committed stated error n somewhat necessary to state all of complicated, it is not them but Supreme Florida, here, points all of the Court nor decided Supreme Supreme Court United States. The of Florida special appearance, Court did not hold or the appeal jurisdiction, from- decision constituted general appearance. It is sufficient have we n say Supreme under consideration United States considered the a rm, deposit whether there was special in Jasper character in Bank, whereby State court could acquired jurisdiction, and held deposits for which the cer- given special tificates were deposits. were not The facts considered tending to show the existence of res Florida plead- were those ed in bill complainants action in the State court.
was held that- facts, under the there .jurisdic- was no within res tion of the State court, and hence no over the non-resi- dent defendants'. respect Court of United placed its own construction- States the conceded facts. It held Georgia that the bank had its remedy common-law unaffected decision. Florida It did not principle refer to the adjudicata, of res any or to provision of the Federal Constitution. In cases of this character, the courts have strong used language: “No State can any representative tribunal or render nugatory a provision of the supreme law.” Wayne [Old Mutual Life Assn. v. McDonough, 204 U. S. There has been used often, sweeping statement that in these eases the want may “always” be inquired into. [Thompson v. Whitman, Wall. Stuart *11 SupRemb Missouri, Vol. Court of 68; Noyes v. N. Y. Kimball, 155 Dickinson, 290 In re 6 Barb.
Butler, 613.] one of the at bar eame before the case A more similar to case Co., Chicago Life Insurance (Cherry v. courts of Illinois appellate the Supreme Court of to the App. 70), which later went 190 Ill. [Chicago Life Insurance Co. on writ error. United States of upon court was the Illinois Cherry, U. S. The suit Company Circuit rendered the judgment against the Insurance question jurisdiction of The County, Court of Tennessee. Chester court, in the circuit and that court- over the defendant raised defendant, the and the defend- jurisdiction held that it had over Appeals Court of appealed ant the Civil from decision Tennessee, transcript it the the had and considered before record, court, including evidence, the and it affirmed the circuit judgment of the circuit court. judgment,
In the suit in Illinois Tennessee upon the question jurisdiction raised the of the in- Tennessee that, regardless adjudication by sisted the Tennessee court jurisdiction that it defendants, had over question the same could any raised wherever, Tennessee, whenever and other State than brought judgment. suit was appears that the Illinois court had it proceedings before upon had in the Tennessee court jurisdiction. Illinois trial The court denied the con- tention of appeal from its decision the Illi- Appellate nois in considering Court presented, distin- guished between the various classes of cases jurisdiction wherein the of the court of the sister State had been these, assailed. Of it was said, there were where entering judgment cases the court assumed jurisdiction, but expressly did not consider, or pass upon ques- tion of jurisdiction; others where there was a mere recital the court the sister State that it had jurisdiction; and others which considered the jurisdiction by the fact that a might special filed application point contest the jurisdiction, and when his contention urns overruled, had filed answer to the merits of the case.
The Appellate Illinois Court held that in the action upon a judg- ment of a sister State, where the issue par- ties had raised, been adjudicated after a full hearing in the courts of the sister State, rendered was adjudicate res jurisdictional questions there raised, questions and such could be raised suit the judgment. Court of the United States Company the Insurance claimed that judgment of the Illinois court due-process violated the clause. That court, stating reasons for affirmance, (244 29-30): U. S. Mpg. Whjxbr Ham, 1926} sustained judgment was present which the ground “The over as the issue Appellate former hearing in the full adjudicated after raised parties was thought matter in this suit. reopened not be it could ease mere declaration assumption or a tacit differently from to stand jurisdiction. had the court record that thereby tac against a defendant “A renders has expressly, do so asserts, if it does not itly that a established taken to be But must *12 that
over
defendant.
of
by its mere assertion
persons interested
all
conclude
court cannot
457),
even where
Whitman, Wall.
(Thompson v.
power
its own
Kelsey,
v.
finds the fact.
fact and it
power depends upon a
[Tilt
jurisdiction
want of
might
held void for
A divorce
be
review Tennessee in- court, plaintiff circuit Upon hearing of the ease bar New York Supreme Court the effect troduced evidence to equity, and jurisdiction in law general with record, court of against domes- brought by over all actions power York, of New with foreign tic in the State corporations for- jurisdiction over determine its under the laws of that State to transacting eign corporations corporations busi- reason officers process being served on ness in reason of State, corporations de- foreign that State. The directors it raised in the precise question fendant raises here the jurisdic- York court, and The the same evidence. de- proper tion of the New York defendant was court over issue, and having termination made introduced have its evidence in that' defendant could behalf. default, made issue, in a court of this raised no such and when sued State challenged could have of the New person over re- would not been bound cital acquired, the record that such had been would permitted have been show evidence to that there introduce *13 jurisdiction was no person pro- over the defendant, of and have judgment nounced the of upon question. the Missouri court that principle ais general application well and settled that where question a proper judicial directly put issue, determination is finally and determined in legal proceeding by having a a court com- petent authority jurisdiction and to question, hear and determine the such decision and question determination of fi- will be deemed nal upon and parties conclusive privies, their and in all further litigation them, between in which question arises, long same as judgment remains unreversed or is not set otherwise aside. [Baisley v. Baisley, 113 550; Mo. Harding Harding, 198 U. S. 335.] areWe bound in proper a give case effect to the full-faith-and-
credit clause of the Federal having Constitution. The defendant invoked a direct question examination jurisdiction over New York court, had a full hearing .the upon question that and permitted having an adverse stand, decision to give we must to the decision of the New York upon question court that the same effect as would given to that determination within the State of New York, or, the same force and effect if as it had been Missouri court. v. Buckingham, [Tootle Harding Harding, 198 U. S. Howey v. Howey, S. 240 W. We have 455.] heretofore set out the which evidence was before the New York and there is no other evidence having here. The New York court Meg. Wilder Haul v. de instance evidence, at the upon that question determined here, under attack collateral subject ruling is fendant, opinion. [Tootle erred its court the New the claim court whether the jurisdiction is, test of supra.] “The Buckingham, is its decision and not whether inquiry, enter on power has l. c. Sutton, Mo. wrong.” [Hagerman 529.] right or power to exercise New York Having procured en- and to person of defendant jurisdiction over the directly inquiry as to ter into authorized mer- judgment upon the proceeding to question before determine that for the determination that court its, itself to the defendant submitted ruling, unreversed an adverse taking chance that question, ques- preclude inquiry would into the same appealed from, and not judgment in the another State. tion when sued Upon given the by that court the defendant was question upon process” by benefit of “due the submission hearing orderly in due manner. offered and a thereon evidence juris say where Counsel for defendant the facts diction depends undisputed, citing law, may made, attack v. Falken collateral State
hainer, W. 758, opinion 274 S. and the As cases cited thereon. already pleaded has stated, been the attack made New York court of lack of over and the hearing issue, allegations and determination of that and to those all others concerning gen defendant’s answer was a eral denial. But, in a collateral attack of another State, the Missouri rule that the same applied rtile is to such col lateral attack as to judgment. collateral attack of domestic [Howey v. Howey, 240 (in Banc) S. W. In that case Court en involv ing validity of a decree of in Florida, divorce rendered said, l. c. 456: “If this be a attack, collateral then under our rule judgments States, from sister apply we must our rule collat eral attack involving eases collateral attack judgments. on domestic Under the Federal law we must treat the of a sister State *14 just as we treat one of our own. Our rule judgment is that if the roll a judgment shows on subject-matter a jurisdiction within the of the and upon shows service the good then it is as against a collateral attack. In words, other judgment if the is to be attacked for infirmities apparent upon record, the face the then it must be by reached some direct action.” It is said, further l. c. 457: “If we are to measure this aof sister State we would measure one of our own judgments, then we would say that, jurisdiction where the of the particular the dependent case is upon extrinsic facts to be shown, the determination of those facts in favor final; being appeal. there no Vqd. Supreme 316. Missouri,
828 22; ex rel. State 133 S. W. 500, 231 l. c. Mills, ex Mo. rel. v. [State Gantt, v. ex rel. 141 State 334, S. W. Shields, Mo. c. 237 l. ” 510, 203 S. W. Mo. l. c. in New judgment rendered the going If are to measure we judgment, then the a domestic applicable the rule express adjudi procure an day in sought who had his and his jurisdiction over the court had question the whether cation of appeal issue decision on that person, met an adverse with and stand unreversed that decision to plaintiff, permitted ground question reopened without appeal, cannot have opinion upon facts erred in its that the court of the other State judgment of a must take the submitted. In such situation we if one of our value as York court at the same Howey l. Buckingham, c. own courts. Mo. [Tootle Howey, supra.] subject In dealing vary with in their facts. some eases proceeding question jurisdic rem, was one regard. others, defendant, being person,
tion subject process, served with and the was whether he was question ordinarily being thereto —the whether there had been process Baisley Baisley, 544, abuse court. question. involved that opinion Numerous cases discussed v. McClellan, (N. S.) Tootle S. W. L. R. A. But of the court of another State a defendant, foreign corporation, over a final must have determi- nation directly somewhere. When tenders that issue in the first instance to a "court authorized to it, entertain there- adjudication invokes obtains thereon, permits which he oo become final far as the concerned, courts that State are without Supreme resort to the Court of the United States under the due clause aside, to set same think principle we adjudicate res applies against him the issue so decided, and that full faith and given credit must be to such decision a suit in another Otherwise, State. there reason why of the latter court greater should be entitled to re- spect than the former court. Judgments (5 on [Freeman Ed.) sec. 1372; Black Judgments, sec. 901.] In passing from this subject, and without discussing of what doing constitutes foreign business corporation in such manner as subject given it to a jurisdiction, may be said that Court of the United States has announced no rule that is definite and all-embracing. In St. Ry. Louis & S. Alexander, Co. v. 227 U. S. it was said: a general way “In be said that the business must be such in character and extent as to warrant inference corporation that the subjected has itself to the *15 Mpg. Hall Wilder Philadelphia served.” In & which it is district in laws of the foreign “A said: McKibbin, S. it was Reading U. Ry. v. personal liability, in to enforce corporation is amenable within the only doing business State consent, if it is absence of inference that to warrant manner and to such extent as in such v. American Tobacco Peoples In Tobacco Co. present there.” it rule deducible from Co., S. it was said: “The U. of such all is that the business must be nature our decisions corporation warrant inference that the has sub character as duly jected jurisdiction, and is authorized itself to the local agents present district officers or within the State or where service attempted.” elsewhere, cases, In it said some those was depends facts.” An that “each case on its own exhaustive review in opinion decisions & those be seen Farmers Mer Bank, Bank v. Federal Reserve Fed. 566. The author chants opinion considering after the concrete facts in each of the many cases, what at deduces he conceives to be the rule the bottom of the decision each of all of those That rule is cases. stated personal follows: “The existence of to determine the liability corporation foreign jurisdiction depends of a in a on the If reasonableness of its exercise. it is reasonable that it be exercised If, it hand, reasonable, exists. other it is not not does principle exist. This fundamental lies at basis of these decisions. In most of them where it was held that did not exist, at bottom, it was because it reasonable that it should be exer cised. those it was exist, where held that it did bottom, was because it was reasonable that it should be exercised.” II. assignment There remains the the court erred strik- ing out defendant’s counterclaim. The counterclaim or set-off, as designated it is also answer, unliquidated was one for dam- ages alleged based Bogert failure of & Hopper, Inc., to fur- nish, within a agreed, time certain articles of desig- # Countercaim. na^e(j specific character for a purpose, ordered de- Bogert Hopper, fendant from & whereby, it was alleged, that in vari- ways ous the defendant expense incurred and suffered loss. There allegation acceptance that the trade given defendant and sued Bogert New York Hopper, & given for the merchan- dise counterclaim; mentioned in the is, no relation is alleged to exist between the transaction petition described in the in the suit York, and the transaction described in the counterclaim. alleged is not assignment fraudulent, allegation but “assignment is that made the purpose preventing asserting defendant from counterclaim, said and that Bogert Hopper, & Inc., parties real in interest and still SupRbmb Vol. Missouri, Court of *16 assignment if the It is that averred case.” plaintiffs real this counter set off the sum entitled valid, the defendant assign acquired may have Hall any right said against claim entitled to was invalid defendant is assignment
ment, if the $5,016.10, Inc., Hopper, for the sum Bogert & against alleged damage. the amount party real ,by an is the assignee, who suit is basis that the On the as a not one allowable coun is the defendant’s demand interest, 1919, because it is Revised Statutes Section under ter-claim plaintiff. against existing defendant and in favor of the one McMullins, 260; Paper Wall 78 Bauerdorf Vose Mo. v. v. [Barnes also, demand On basis defendant’s is not Co., 203 W. that S. 220.] provides 1919, which 1293, Revised Statutes a under Section set-off non-negotiable assigned instru accounts that, “In actions every just set-off or other ments, shall allowed de defendant being time his which existed in his favor notified of fense being set-off, its a because assignment.” This is so as to it is a damages. McMullins, unliquidated supra; for v. claim [Barnes Brokerage 164 Ryan, 17; Campbell, v. 210 Co. v. Caldwell Mo. Mo. 8; 110 App. Co., Estate Schmelzer Mo. App. Scarritt Co. v. Arms 406; Eldridge, rel. v. Mo. State ex 584.]
It is held the term “other defense” also used said section in meaning, is restrictive to a refers defense to the demand itself, is, grounds not a defense unconnected with the de- upon. mand sued Estate v. Schmelzer, supra.] The count- [Scarritt pleaded up against er-demand here set is not as a defense the demand Bogert & Hopper, arising upon itself is a but claim a contract not alleged any connection with the contract out of which the Bogert action Hopper & arose. The pleaded counterclaim as up seems to alternatively, is, be set theory on the if the assignment plaintiff to the is valid the counter-demand should be al- against, lowed as or to the extent of, the interest the plaintiff, and assignment if the be not valid that defendants have for full amount of their counterclaim. Counsel for urge that the motion to out, strike which is in the nature of a demurrer, admits the pleaded facts well counterclaim. That must be conceded. Under the counterclaim, it alleged Bogert Hopper, & Inc., is the party real in interest and still real plaintiff. Under that theory, plaintiff Hall only would be plaintiff. nominal held has been that the fact that a set-off is unliquidated, is bar in equity. thereto Perry, [Smith Mo. State ex rel. Motor Allen, Car v.Co. 367; Strong Mo. v. Gordon, App. “It is the settled rule that the non-residence of ground action recognized permitting equity the de- Meg. .Hall Wilder. claim, even plaintiff’s in set-off demand plead (cid:127)fend'ant de pleading set-off as opportunity for had the where the McMullins, 78 L. Barnes C. at law.” R. fense to suit [24 against whom the set-off “And non-residence Mo. 271.] [Strong equitable set-off.” ground to claimed, allow is a sufficient “Cross- App. c. and authorities l. Gordon, cited.] 203 Mo. wholly arising out the same counterclaims, whether demands unliquidated, liquidated or transactions, and whether disconnected way whenever the circumstances of set-off be enforced wrong and equity prevent to warrant the interference Co., 152 U. Oregon and S. injustice.” Steel [Rolling Mill Co. v. l. c. 615.] *17 plead plaintiff not either that the The answer does is, non-resident, Bogert
is a non-resident, Hopper, Inc., or that & Bogert place or in Hopper, Inc., that & no office or of business has petition however, allege plaintiff, Missouri. does Bogert organized & Hopper, Inc., corporation doing and' busi is a ness under the court in Nickerson Gil This laws York. liam, 29 equitable pleaded an Mo. ruled that set-off could be against person, a third in party who was the real interest. In that pleaded way case the matters of set-off were of the nature debts, and not unliquidated damages, and the cross-demand set up against person the alleged party to be the real in interest was stricken out the trial up court. The demands set were in the nature of debts. It was held defendant was to the entitled have the benefit his set-off in Reppy that suit. v. Reppy, plaintiff the alleged was party interest, to not the real be and cross- demands sought against were to up party interest, be set the real the being answer framed, said, “upon theory it was eq the of an uitable defense or counterclaim,” by way or reduction satis faction of amounts due on iipon by the notes sued plaintiff, alleged was to be insolvent. It “equity was said least, at may title be treated as in the real owner.” Some oE pleaded demands by the defendant seem to unliqui- have been dated. It was held to be error to out strike the counterclaim. It said, l. 573: c. “In regard to a counterclaim, set-off or equity usually follows law, always. but not When an plain insolvent tiff is suing, equity will take of unliquidated claims, and allow offsets which would be allowed at law. [Waterman on Set-off, 80, note, 371-2, note; Bradley v. Angell, 3 Comst. Ainslee v. Boynton, Barb. But a demand cannot be set off equity any more than law, against unless it existed the plaintiff, time, in favor of the defendant, at of the commencement of suit, and had then Set-off, 427, par. due. become [Waterman 381.]” Missouri, Vol.*316. Supremk upon a non-ne 260, the suit McMullins, 78 Mo. In Barnes plain assigned to the by him Pence, and given to one note gotiable contract, but arising upon Kvas not The counterclaim tiff. plaintiff, committed been alleged to have upon a tort
founded It and insolvent. a non-resident alleged be who and Pence out, this stricken but properly ivas that the counterclaim was held arising upon contract. a demand it was not ground onwas jurisdic pointed out that the way conclusion, it was On the origin ancient was of grant proper in a case equity relief tion of existed, inde still any effect, statute to prior to and existed insolvency or non-residence of any statute, and that the pendent of accepted ground as sufficient generally party in real interest persuading that the kind. It was said equitable some relief of circuity not so much the inconvenience principle in such cases was injustice compelling actions, to the defendant him of two execution, taking and of his under pay plaintiff’s demand plaintiff’s assignor. insolvency of uncertain chances due to equally assignor might a consideration The non-residence of l. cogent. opinion said, c. “I am The learned writer 2721: over cross-demands has equitable not aware that control ever this unliquidated legal been invoked in this State favor of demands. against Cogent readily reasons occur to the mind extension damages doctrine. involves an assessment of before the set-off can undertaking equity decreed. This avoids whenever again, nothing it can. Then perhaps result assessment *18 very a small against plaintiff’s demand, sum to be offset the and the injustice holding plaintiff’s abeyance of demand in the for un certain an Notwithstanding event must often fall on him. these rea may plausibly sons it argued law unliqui- now allows as arising dated demands against on contract to be offset one the other under the counterclaim, equity ought name of to follow the law, and in insolvency cases of plaintiff’s of non-residence assignor, fur nish in liquidated relief like manner inas cross-demands. When the unliquidated demand of equitable the defendant of character, right such as prospective to a balance in an unsettled partnership, some of the against reasons equitable jurisdiction, exercise of such' as the damages by assessment of chancellor, a obviously are wanting. Whether equity in help would this State the defendant asserting right such a by way of counterclaim, has been up touched on but not decided.” In Smith v. Perry, 197 438, Mo. it was held unliquidated that an demand might subject be made the of set-off in a equity. court It ‘‘ said, was l. c. 459: Cross demands counterclaims, whether arising out wholly the same or disconnected transactions, and liquidated whether or unliquidated, may by way be enforced of set- Meg. Hall Wilder v. to warrant the interfer as the circumstances off whenever injustice.” wrong- and : prevent equity ence Banc, en 292 Mo. Allen, v. rel. Motor Co. In State ex to have been appears relator a upon certiorari, contention as a to sustain set-off extend its equity would liquidate empaneled to jury to be require a a so uncertain as sum ruling was whether the question before this it. The rulings conflicted with the appeals original case court of ruling in especially Barnes McMul court, with and more this sought claim to be however, stated found, lins. being pleaded as judgment before reduced to had been fact set-off it was concluded there was no set-off; but, so, and that was while any other McMullins or deci with in Barnes v. conflict the decision Reppy, Perry Reppy Smith the decisions sion this decisions, (l. 369), c. and those others, certain were referred to unliqui- authority proposition were held "constitute for set-off circum-1 by way claims be enforced whenever the dated equity.” are such warrant interference of Also- stances as to pointed disposition McMullins it was out that the made Barnes v. sought rested the fact that the counterclaim there be estab lished, arising upon was not one contract. i Strong Gordon, App. prom the suit on two ssory notes. The cross-bill of defendant admitted execution notes, alleged but in them; had no real interest plaintiff’s that the real son, owner who was a non-resident of this property subject State and who had this State to execu tion; plaintiff’s son indebted to account partnership formerly him existed between and the accounting and that no had accounting been had between An them. was asked of the affairs of partnership, the set-off of the amount' to be found due to thereunder, with prayer for equitable relief. trial plaintiff’s court sustained the motion for judgment upon pleadings. Discussing general principles ap plicable, said, the court l. c. 472-473: "While suit, instituted, is an law, yet action at code, under our calling answer proper equitable change relief will into one in equity; case juris and the diction of equity to allow an equitable set-off is not any based set-off, statutes of independently but exists them; and thus, *19 equitable exercise of this jurisdiction, courts are enabled jus to do parties tice between the strictly cases not within the statute. [24 R. L. 803-4, par. C. of set-off legal doctrine 12.] whether or eq uitable, is essentially a equity. doctrine of R. C. L. par. [24 Furthermore, the fact 9.] the set-off is unliquidated, is no bar in equity. thereto v. Perry, 460; 197 Mo. [Smith Schwartz v. Harris,
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different against whom the of the one And 865, par. non-residence L. 70.] equitable set-off. ground allow an to is claimed is sufficient set-off Chicago Mill Co. v. 95; North Bradley, 40 Colo. Co. Imp. [Platner Stevens, 167 616; Pac. Caldwell v. Co., 152 U. S. St. Louis Ore Carter, 517; Arnold v. Co., 100 Miss. Piano 610; McIntyre v. Forbes 862; Myer-Bridges Co., 100 S. 324; Abernathy Coffee W. Ga. Roseman, Ind. Porter v. Czerwinski, Wis. Pietrowski v. Light Co., 92 Ark. Ewing Lewisville Merkle Electric ” 594.] by al bar, has present plaintiff at become In the case substitution, Strong pending the suit. In the leged assignment, and disposition upon appeal, and the ease, the the court accom made panying reversing remanding cause, suggestions stated urged l. “But cannot com as follows: c. 474: it is pel son, Strong, Jr., party her L. to become a Louis to the suit Strong, accounting But, enter into an with defendant. if Louis L. Jr., notes, alleges, real owner of the as the answer doubt will, indirectly compelled losing he do large part to risk may of his notes, although any power directly not have to compel party. greatest practi to become a No him doubt this difficulty permitting cal setting up the matter of this un- liquidated claim an equitable set-off. Nor develop can future anticipated. might ments be become for chancellor, advisable general prayer under the equitable relief, merely defer enter ing judgment until had a has reasonable time to secure accounting thereby liquidated, his demand and credited on the amount due the notes when finally rendered, restrain proceedings further on the until accounting *20 Railway y. Terminal La Lone with, may rulings accordance and as near oped, hereto C., to. Seddon. concurs. and referred fore made opinion foregoing PER CURIAM: —The by Lindsay, C., adopt is opinion judges of All ed as the court. except of the concur, sitting. Gantt, J., not
Edna La Lone, Appellant, Administratrix of Estate Maurice La Lone, Bridge Railway . St. Louis Merchants Terminal v Company. 293 S. W. 379. One, February
Division 1. PRACTICE: Demurrer to Evidence: passing Interstate'Commerce. a demurrer to evidence offered to show that her deceased engaged husband was injuries, interstate commerce at the time of his required every is jury, make inference in her favor which the with any degree propriety, might infer. 2. A the Assembling Empty INTERSTATE Freight COMMERCE: Cars at House. engaged switchman assisting in interstate commerce who is empty freight house, movement of a train of railroad a cars to wherd freight. movement, some of them are to be loaded with interstate company, engaged defendant trastate railroad in both and in- interstate terminal commerce, empty yard cars from the of another interstate freight house, immediately shipment railroad to its there in- to be loaded for states, commerce, preparatory to other is interstate and is movement necessary aid and a incident in furtherance move- interstate it; closely part ment and so connected with it as and if in the to be yard same train with those cars are at the same other interstate assembled empty designated freight at intra- cars loaded the same house with to be injured freight, switchman, negligently is state who is while the train yard freight house, being engaged in com- run from the is interstate Liability Act, Employers’ of mov- since work merce under ing the Federal freight empty intrastate is not loaded with those cars which are to be being independently in which defendant with the movement of interstate commerce of the done immediately directly engaged, connected so but is freight part of the interstate as to be interstate cars to be loaded with movement. Train, Interstate. Proof That Part 3. -:-: employees Proof thirty-four eleven knew that railroad interstate undertook train, railroad terminal empty cars of immediately house, freight would be yards to the the car to move from designated apart freight set for house spotted certain sections freight interstate with be loaded shipment, there would interstate proof states; at least further points designated other moved to day shipped to next spotted, loaded on there were four of them train, proof states, the entire sufficient points designated in other house, freight interstate was in yard during commerce, from its movement Act, Liability for Employers’ action, Federal under in an negligently who aof switchman damages death recovery train. assisting movement injured while notes procedure has been had. Such adopted has been in certain circum stances. R. 807, 857-8, par. C. L. anyAt rate, [24 we do not right think defendant’s equitable to an set-off should be at once fore pleadings.” closed on the bar, the case not, has in a direct way, invoked equitable jurisdiction court, but, under the circumstances appearing in the record think we do not that in this case right of the defendant fully up, prove set any and all facts show- ing right equitable to an set-off, should be foreclosed by an affirm- ance the action of the court in striking out the but, counterclaim, that the should be reversed and the cause remanded with leave defendant to file pleadings other if desired, for such action thereon proper the trial court as under the issues devel-