Kahn v. Mercantile Town Mutual Insurance

150 Mo. App. 393 | Mo. Ct. App. | 1910

REYNOLDS, P. J.

This case was brought on appeal to this court from the circuit court of the city of St. Louis, the certified copy of the judgment rendered and the order allowing the appeal being filed in this court May 5, 1906. It was submitted on briefs October 3, 1906, and on the 5th of February, 1907, the judgment of the circuit court was affirmed, the opinion of this court being- written by the then presiding judge, the Honorable Charles O. Brand, in which all the court concurred. Afterwards on motions made to transfer the case to the Supreme Court on the ground stated, among others, that it involved the construction of the Constitution of the United States and was not a cause within the appellate jurisdiction of this court, the judgment of affirmance theretofore rendered by this court was set aside and the cause transferred to the Supreme Court. In due course the cause came on to be heard in that court. On the 31st of May, 1910, an order was entered by the Supreme Court, transferring the cause hack to this court, the Supreme Court reaching the conclusion that no federal questions had been raised in the circuit court and preserved so as to present a question conferring jurisdiction upon that court, all the judges of Division No. 1 concurring in that conclusion, which was announced by Judge Woodson; Judges Varriant, Lamm and G-kaves concurring on grounds differing from that announced by Judge Woodson. See 228 Mo. 585, 128 S. W. 995. As this court in transferring the case to the Supreme Court did so solely on the question of jurisdiction and not from any doubt as to the correctness of the conclusion reached by it on the merits, and as the question of jurisdiction, is now settled by the Supreme Court, counsel having submitted the case on the briefs heretofore filed, it is only necessary, in disposing of the case, to adopt the opinion heretofore handed down by Judge Bland, which, with the statement made by him, is as follows:

“In September, 1904, plaintiff brought an action in the United States Court of the Southern District, at Ada, Indian Territory, to recover on a policy of insurance against loss by fire, issued by defendant to plaintiff. In his petition, plaintiff alleged that he was a citizen of the United States, and a resident of the toAvn of Roff, Chickasaw'Nation, Indian Territory; that defendant Avas a foreign corporation, engaged in the business of fire insurance, Avhose office and principal place of business was in the city of St. Louis, Missouri. Defendant was duly seiwed with process in Indian Territory and, on December 30, 1904, appeared in the United States Court to said action and filed its answer, Avherein it admitted plaintiff was a citizen of the United States and a resident of the town of Roff, Indian Territory ; and also admitted that it was a foreign corporation, engaged in the insurance business and its principal place of business was in the city of St. Louis, Missouri. Otn March 7, 1905, the cause came on to be heard, and plaintiff recovered a judgment for |905, and interest thereon from the first day of July, 1903, until the judgment should be paid, together with all costs in the action expended, for all of which execution was awarded. Plaintiff brought suit on the judgment in the circuit court of the city of St. Louis, and recovered a judgment by. default thereon, from which defendant appealed.

“The original return of the sheriff, endorsed on the Avrit of summons issued in the cause, recited that service Avas made ‘by delivering a copy of the writ and petition as furnished by the clerk to J. W. Daugherty, manager of the said defendant corporation, he being in said defendant’s usual business office and in charge thereof. The president or other chief officer of said defendant could not be found in the city of St. Louis at the time of service.’ On October 4, 1905, defendant appeared for the special purpose of filing its motion to quash the return of the sheriff to the writ of summons, and filed said motion, stating as a cause why the return should be quashed, that it was insufficient to confer jurisdiction over the person of defendant. Pending the motion, on October 13th, the sheriff was granted leave to amend his return to conform to the facts, and the return was amended to show that Daugherty, who was served, was the manager of defendant and found in defendant’s principal office and in charge thereof. Defendant was not served with a notice that application would be made for leave to the sheriff to amend his return, but after becoming aware that leave had been granted and the return amended, made no motion to set aside the order and saved no exception to the action of the court in permitting the sheriff to make the amendment. After the amendment was made, the motion to quash was overruled. Defendant filed no answer and made no further appearance in the cause, and the case passed over until the fourth day of December, 1905, when it was called up and judgment rendered by default for the sum of $1050.30 and costs. The judgment sued upon was properly authenticated and was filed with the petition before the cause was taken up. for hearing.

“1. Defendant assigns as error the action of the court in permitting the sheriff to amend. Ms return without notice to it. No proper steps were taken to preserve an exception to this action of the court; besides, the amendment was in response to the motion to quash, and defendant was in court and was constructively, if not actually, present when the order permitting the amendment was made, and was not entitled to any special notice that plaintiff would apply for an order for leave to the sheriff to amend his return.

“2. Defendant contends that the judgment was prematurely taken. Tlie amendment of tlie sheriff to the return of the ivrit of summons related back to the date of its actual service, hence the return day 'Avas the first day of the October term, 1905 (Webster v. Blount, 39 Mo. 300), therefore, the judgment Avas not prematurely taken.

“3. Defendant also contends that the judgment is irregular for the reason no inquiry of damages Avas made. Either party might have demanded a jury to assess the damages. [R. S. 1899, sec. 775; Brown v. King, 39 Mo. 380.] Defendant, by not asking for a jury to assess the damages, Avaived its. right to one, and cannot hoav be heard to complain because a jury Avas not called. [Mumford v. Keet, 71 Mo. App. 535.]

“4. Defendant contends that the petition does not state a cause of action, in that it affirmatively appears by the petition that the judgment sued upon Avas rendered by the United States Court in the Indian Territory, alleged to be a court of limited jurisdiction, and on that account it Avas necessary to- state the facts in the petition, shoAving that it had jurisdiction of the subject-matter of the suit. Section 6, of the Act of Congress, approved March 1, 1889, establishing a United States Court in the Indian Territory, provides: ‘That the court hereby established shall have jurisdiction in all civil cases betAveen citizens of the United States Avho are residents of the Indian Territory, .... or of any state or territory therein, .... and Avhen the value of the thing in controversy, or damages or money claimed shall amount to one hundred dollars or more: Provided, That nothing herein contained shall be so construed as to give the court jurisdiction over controversies betAveen persons of Indian blood only.’ [25 U. S. Statutes at Large, p. 784.] Plaintiff alleged in his petition, filed in the United States Court, that he Avas a citizen of the United States and resided in the Indian Territory; that defendant’s chief office and place of business was in the city of St. Louis, Missouri. Both of these allegations were admitted by the answer of defendant, so that it stands confessed, that plaintiff was a citizen of the United States, residing in the Indian Territory, and that defendant is a citizen of the State of Missouri. This confessed status of the parties brought them under the jurisdiction of the United States Court which rendered the judgment; and these facts are made to appear by the exhibit filed with the petition, and we think the petition substantially follows the formula set forth in the statute (sec. 634, R. S. 1899) for pleading a foreign judgment. Besides, the court rendering the judgment was a United States Court and its judgments are entitled to equal rank and presumption of regularity as judgments of the circuit courts of this state. [Reed v. Vaughan, 15 Mo. 137; Bracken v. Milner, 99 Mo. App. l. c. 194, and cases cited.]

“5. It is contended that the judgment is excessive. In what particular or for what sum it is excessive is not stated. The judgment sued on was for $905, with interest thereon from July 1, 1903, and for costs. The costs were alleged in the petition to be $13.30. Presumably, the trial court computed interest on the principal sum at the legal rate of interest prevailing in Indian Territory, from July 1, 1903, to the date its judgment was entered, and on proof added thereto the $13.30 costs, and rendered judgment for the total amount thus ascertained. We think to have omitted the interest or the costs would have been a deniál of .the full amount plaintiff was entitled to recover. The appeal is void of merit.”

For the reasons above stated, the judgment of the circuit court of the city of St. Louis, heretofore rendered in the cause, is accordingly affirmed.

All concur.