Hays v. Merkle

70 Mo. App. 509 | Mo. Ct. App. | 1897

Bond, J.

The petition alleges that plaintiff, W. W. Hays, was sheriff of Sedgwick county, Kansas; that the coplaintiff, the Oliver & Imboden Company, was incorporated and is engaged in business in that state; that defendant replevied certain personal property from said parties in the district court of Sedgwick county, Kansas; that upon a trial of said suit judgment was rendered for the defendants therein for the redelivery of the property, or failing that, the recovery of $378.50 and costs. The petition alleges that said judgment, was not complied with, wherefore the defendants therein bring the present action.

The answer denies that the defendant herein authorized the suit in question, denies that he received any property thereunder, or that any was taken from the defendants in said suit, and further denies that the judgment sued on is valid.

The reply is a general denial. The cause was submitted to the circuit court without a jury, and judgment given for the plaintiffs, from which this appeal is prosecuted.

^rationf rigiit°to sue m state. The first error assigned is that one of the plaintiffs, the Oliver & Imboden Company, being a Kansas corporation, was not authorized to maintain an action in this state. This is untenable, gesgion ^ctg 0f 1891, page 75, are in terms directed against foreign corporations, who propose “to transact business in this state, or to continue business therein.” It is only when such corporations are doing, or about to do business in this state, that they become subject to the requirements and prohibitions of the act. All corporations wherever created, neither engaged or about to engage in business in this state, are not included in the operation of the statute in question, and are entitled to sue in this state upon the principle of comity. There is nothing in the record in this case which discloses that the corporation, co-plaintiff, though created in Kansas, proposes to begin, or has ever transacted any business in Missouri, hence the act in question forms no obstacle to its joinder in the present suit.

F^en“%aSdfty.

acts of attorneys: ing.

All concur.

The next error assigned relates to the validity of the judgment upon which this action is brought. The judgment is regular and formal on its face and duly authenticated. It is similar to a judgment in a replevin suit rendered in the state of Wisconsin, and which the Kansas City court of appeals held might be the basis of a recovery in an action of debt. Smith v. Kander, 58 Mo. App. 61. The general rule is, that a foreign judgment, valid on its face, when made the ground of a suit in this state, is conclusive as to all matters except jurisdiction of the subject-matter and of the person of the defendant. Williams v. Williams, 53 Mo. App. loc. cit. 619. The judgment under review is not open to objection for want of jurisdiction of the subject-matter, since the return shows that the res was seized by the proper officer and turned over to the plaintiff in that case under an order of delivery. Neither can it be attacked for want of jurisdiction by the Kansas court of the person ■of plaintiff in said action. It may be conceded for the argument, that there is no substantial evidence ot original employment of attorneys to represent him m that court, as we found such proof was lacking in. the case of Hays, Sullivan and Steinmetz v. Merkle, 67 Mo. App. 55, where a somewhat similar state of facts as to original employment was presented. But the present record contains evidence of ratification by defendant of the act of the attorneys who brought the suit in his name, which was wholly wanting in the case cited. The record now before us shows that defendant gave a deposition used on the trial of the case, resulting in the judgment on which this action is founded, wherein he, among other things, stated that he. was plaintiff in that action, and claimed the goods replevied in his name under a mortgage executed to him by the creditor against whom the writ of attachment ran, which had been levied upon the goods, and that this deposition was used on the trial of that case. We can not say that this testimony did not afford substantial evidence, in connection with the other facts in the record, that the defendant with full knowledge of the bringing of said suit in his name ratified and adopted the action of the attorneys who had assumed to act for him, and as the trier of the fact found in accordance with this theory, his conclusion upon the facts is not reviewable by us. The result is the judgment herein will be affirmed.