*1 (2d)W. v. 125 S. Bonding & Insurance Massachusetts Leis back to 906, 1. relates petition The c. rule is that the amended 908.] (2d) al., institution of the v. et suit. Scott [Cindrick 957, 1. 958; Realty Company, c. Lumber v. 614, 1. the same petition If is the cause stated in the amended 629.] re petition original as that stated in the the amended petition, then originally lates back to the time filed. If when the suit was petition stated in the amended from that stated is a one different thereby original petition aban then the first cause stated consequence doned and an became of no whatever. Defendants swering petition objection departure waived amended without original They thereby; from the cause of action are bound stated. only the issues thus made were the issues before al., supra, v. Scott et 1. c. A different would [Cindrick 959.] give whereby jurisdiction sanction to a rule could confer will, regardless court at statutory constitutional limita tions, by simple expediant following procedure herein. subject matter pending respondent of the action before assignment to relatrix admittedly of homestead and dower in lands County, located in Adair principal messuage. location of the Respondent, Judge Circuit of Putnam lacks subject (Section matter 1939) Revised Statutes Missouri jurisdiction may not be conferred consent parties. v. Woody, Adm’r. 551; ex State [Brown Flynn, Lambert v. (2d), 52, 1. c. It alleged in 'the petition us, before and not denied the return, respondent purposes to render judgment setting final out dower and homestead. Since he lacks to render said he should be prohibited and doing, restrained from so and from further proceeding therein. ex rel. Lambert Flynn, [State supra.] provisional Our rule should be made Boyer, absolute. G., concurs. foregoing opinion CURIAM:—The Sperry, C., is adopted of the court. preliminary .Our writ prohibition permanent made respondent hereby prohibited enjoined proceeding further in the cause. All concur. Company. Progressive H. Ross Johnston Appeals, Court of Feb. *2 B. appellant. G. Southall for Haymes -Dickey
E. M. Arnold and & Plaintiff: policy. SPERRY, is a suit on a C. This *3 Johnston, beneficiary by to Stella B. is the defendant policy in a issued ju- on plaintiff’s petition deceased. Defendant’s motion to dismiss court, grounds circuit sustained. was, risdictional the appeals. applied County, Missouri, in she
While deceased resided Greene Arkansas by defendant, an policy suit, for the in which issued was duly business time, at licensed to do corporation. Defendant, was department in previously filed with -insurance Missoiiri had the Insurance as power attorney constituting Superintendent its of the of Thereafter, agent its for of defendant ceased process. the service doing state; from but the business in Missouri and withdrew the power attorney on and in of remains file force. May 4, 1935, County. Plaintiff, named
Insured died in Greene beneficiary, County a in- resident of where this suit was Jackson agent stituted. maintained office for Defendant no or the transaction any county of in business in this state. gleaned
The above to be respective facts are the briefs of the controversy. question and are in presented not The sole is: County try Did the circuit court of Jackson have issues in a suit therein instituted on a policy issued foreign corporation, a defendant, corporation sole which maintains agent no office or for the transaction of state, business within this having insured in resided Greene time her of death ? depends upon The correct a proper answer construction of Sec- 874 tions Revised Statutes Missouri 1939. Plaintiff contends Section is a venue statute and that, under its provisions, foreign Company may a insurance county sued in state, regardless of of where the this cause of action accrued or company not or there maintains an agent whether office or usual of its business. many transaction There are decisions to in However, a recent case, effect. this court thoroughly re- service 6005, supra, is a held that Section viewed the decisions and National statute, not a venue statute. [McNabb ap- not are provisions Its Company, 523 1. plicable in ease at bar. case. controlling in this provisions 874, supra, are Section county here-shown, in the brought, Suit must be under circumstances county where or in a action accrued where its usual agent the transaction of an or office for maintains Com Liberty Insurance National customary McNabb v. business. pany, supra. instituted, was this suit accrued, and when
When this action county this or agent maintain an office defendant did not county where in the Therefore, must have been instituted state. Was that accrued, no vested. action else cause of death, her county Greene, insured resided at the time where Jackson, plaintiff? was domicile held Company, Liberty Insurance we In McNabb v. National accrued in action, fire insurance the cause of county Linn, Sullivan, occurred, not where fire As v. American National was In Roberts where the suit instituted. cause we said: “The accrues at the insurance Schuyler that, insured did die dies.” We since not agent there, the and since defendant maintained no or office jurisdiction. circuit called to the court That Davis, attention of the State ex Bank not l. c. 380. The court “The cause of action did said: ” Schuyler County, . accrue in suit was instituted . . *4 and, inference, approved point. Shelton, 634, 638,
In l. Banker’s Life Ass’n. v. suit instituted widow a other than died, that where insured we held:
“The place cause of action accrued where it came first existence; and it place right into came into existence at the where the arose; that to at the say, place to the action assured died. Co., v. Ins. Mo. [Rippstein transitory “The if action is the assured died outside the state place it accrued.....” would.fix Rippstein In Louis Mutual Life St. Insurance a cause Court of action life on a transitory, person insured, follows the of the and accrues he and where dies. when cites relies on Lentz v. Evans & Howard Fire Brick (2d) 1070, e$,se
Company, l. c. 1071. In Phelps been on a occurring sued breach of contract it maintained an St. Louis where office. Defendant had no office County. in Phelps place of breach is court held that “The (cid:127)usually place performance, there the cause of action accrues,” and held that Louis. Motherstadt v. venue was St. Newman, authority; App. 619, is relied on as pay the court stated that it was there held that mere refusal to money, place payment being agreed upon, does not accrue place may action at the where the creditor resides or be found when pay case, the refusal is made. In the Motherstadt the court said: difficulty, therefore,
“There is no death property destruction of the insured accrues the cause place of action and the bringing such event fixes the may brought suit here the where as where the cause of action ’’ accrues. The law is well settled a cause of action based on a life in- policy accrues death where insured’s The judgment occurrs. Boyer, G., should be affirmed. concurs. foregoing opinion CURIAM: —The adopted Sperry, C., of the court. The is affirmed. All concur. The Prudential M. America, John Goldsmith. Appeals. December