*1 Ihw, They correctly' preferred. state the legal should be depositary ' ’ ’ (cid:127) point are not in here. judgment Its be af- preference. below denied a should The court Mays, J.,. sitting. except All is so concur firmed. ordered. Joseph
Henry Appellant. McMahon, F. J. Mertens (2d) 127. One, December 1933. Division *2 Walther, Lyon Saunders <& Leahy,, appellant. Anderson *3 Hart,for Graf, respondent. L. M. G. E. Hart Herbert Luke by the STURGIS, on certification in this court C. This cause is City opinion its deemed Appeals because that court Kansas Court of Ap- Louis Court of opinion the St. in the case in conflict with an plaintiff has filed peals. suit is the third one which to-wit, work and upon, defendant for cause of action 'sued in connection labor done and material and tools furnished asking judg- County, Highway in Gasconade construction a State $2,170.54. general con- The defendant ment each case for J. Haeff- highway' one Christ tractor for the construction The real grading work. him to do the ner was subcontractor under this work parties did whether is as to contest between *4 subcontractor,' general or for the contractor for the defendant as question principal question here. Haeffner, is not but that the of the' de- of over the is the court here one of against him. judgment from a fendant, appellant who is the was at all times way: The defendant This arises in this of city resident plaintiff a and the of St. Louis resident done, the-plaintiff, County. was all the road work After Gasconade therefor, him agreed pay claiming had that defendant there, place the him got on against service him in St. Louis and suit record, by fully the disclosed For reason not some of his residence. first dismissing the Just before that suit. plaintiff later dismissed action cause of bn the same suit, plaintiff brought another suit n against defendant resided, County, Gasconade Gasconade resident of Haeffner, also a subcontractor, Christ J. the for him liable to were defendants County, claiming that both such Plaintiff work. in this road and tools furnished work done the County and in Gasconade defendant Haeffner on the obtained there. "defendant this Louis on to St. and served issued summons awas defendants of tbe tbat one' reason for tbe proper This was Statutes Revised Section of the suit. of tbe venue resident hearing came on However, 2. that cause subdivision when con- only, his answer appearing purpose filed for that plea juris- taining’ general denial and to the and a abatement court, alleging diction of the defendant herein “that the said other named, necessary party Christ proper J. Haeffner. is to this attempting joined proceeding, purpose and is herein for sole tbe Joseph against to confer on this court said defendant. pa.rtv’ McMahon; F. that within the said Haeffner is not an ‘adverse meaning provided; the . . . the statute such cases made and herein, joinder that colorable, defendant is said Christ J. Haeffner. .; . fraudulent and fictitious under statutes same, construing joinder of this State and tbe the said the decisions prohibited purpose for- said Haeffner for aforesaid bringing bidden.”’ This also recited the Louis, plaintiff against tbe first suit de- in St. therein, appearance fendant’s and the dismissal of same soon after filing County. of this suit in The record does second Gasconade any (the not show first of the details of the trial of such second suit iudgment County), one in Gasconade but a was entered therein Term, September reciting appearance tbe September 16. things parties, being of tbe “and the matters and herein now sub- court, upon pleadings mitted to the bv evidence adduced cause, same, court, upon parties both in said consideration doth sustain said in abatement. It is therefore considered-and petition adiudged bled herein be and tbe same Joseph hereby dismissed as to F. McMahon.” is not shown joint what was done in that case as Christ J. Haeffner. defendant. disposed On da.v the same the said second suit was of as stated. 16, 1925, September present filed in Countv Gasconade or third suit on the same cause of action this defendant alone and had summons issued and served on him that sheriff of dav County. and in Gasconade Tbat sheriff testified he served present day summons in the case on defendant on trial !‘right decided, of the second suit mentioned after the ease was be steps;” fore he went down the that defendant was interested in the case of Mertens McMahon and Haeffner and the present service in the day ease was had that case was tried every disposed regular way, of. The summons was issued bv County pending the Circuit Clerk Gasconade the case there and *5 personal the service was on county. point defendant in that of Louis, importance is that this who is a of resident S.t. having County been jointly sued in Gasconade J. Christ Haeff- ner and Louis, County service had on him in St. came to Gasconade defend that action on his to the plea of that court. having successfully
and
disposed
immediately
of
case he was
that
yet
and while-
in
present
courthouse served with summons
the
on
the
required
again
same cause of
appear
action and
and
defend, regardless
wrongfully
of how
he was sued there.
[Vastine
Bast,
first plea heard the defendant’s in or and abatement allegations The proven in respect that contradiction. were without pleadings suit and record court second in former .or plaintiff jointly in against J. Haeffner and Christ defendant County this de- in showed that put Gasconade were evidence and Louis, had fendant had case in been that .summons served St.. in Gasconade filed his answer the court and County plea, him, over and heard and sustained present defendant; discharging in court that defendant present hearing and that testified his own on that behalf yet while case was filed and summons issued and served on defendant in the courthouse. prepared had plaintiff present That suit and filed the sheriff, ready issued hands of summons for sustaining anticipation defendant’s the action of the court in suit, plain argument. is too for in the other nothing bringing the plaintiff’s While faith in there is to show bad County jointly against two other or second suit Gasconade get attempting defendants, there, one which and thus resided county, ap- it is over this trial in that defendant for w;as try in his own
parent the case determined city county, county of Gasconade of'the defendant’s instead get Louis, brought serv- present suit St. so end thé County attending the while ice on was in Gasconade be it was. trial of the result such other should ju is whether the The our determination first auestion County obtained risdiction of Circuit Court Gasconade statute, Revised Section Our upheld. manner stated can be suits, bringing provides that when place as to Statutes filed, State, first the suit shall be the defendant is a resident of resides, county county or within which the defendant “in the found; may be the defendant plaintiff resides and within which the defendants, they in dif reside second, are several when there county.” any'such may brought counties, the suit ferent single against resident this State is bringing suits place resides, resides where county where found, against may two or more defendants and the defendant counties, one of them then in residing in different desiring defendant,' properly to sue therefore plaintiff, This resides. suit him in St. Louis If where he resided. there person, to-wit, another Haeffner, jointly plain Christ J. liable to tiff on the on, proper, cause of action sued it was under Section join Revised Statutes him as a codefendant. Plaintiff could *7 by making have done this Haeffner a defendant in his suit in St. Louis having and summons issfied from that court and served in Gasconade County. doing this, of Instead he in St. chose dismiss the suit County, and making Louis ner, institute a new suit in Gasconade Haeff- there, who resided a codefendant with this defendant under quoted having subdivision of second the statute and summons McMahon, making issued to St. Louis for defendant thus the ease County. in plaintiff’s right triable Gasconade The to do this de pended jointly defendant, Haeffner, on the fact that the other was plaintiff liable to ex Jackson defendant McMahon. rel. [State Bradley, joinder if Mo. 91 S. W. And 483.] merely jurisdiction colorable purpose giving for the of to the Cir County cuit of Court Gasconade over this a resident of Louis, upheld. procedure St. then the could not [Graham Ringo, any event, In the record here shows that on 324.] the trial of the issue of over the of defendant McMahon, judgment the court in such other case held and entered sustaining above recited in defendant McMahon’s abatement dismissing of appeal that action and him. petition as to No judgment adjudication taken and that final that Cir stands as a County acquired cuit Court of Gasconade over this no defendant in that action, compel it did him to there. attend court said, plaintiff anticipated
As we have would be the that such present independent action of the court in that case filed the and County against suit in McMahon alone and Gasconade seeks to sustain of defendant on that court over the theory plaintiff brought county in the suit within which This in resides and the defendant was found. is accord- ance strict terms the statute as defendant was found and process County, in served with and takes the Gasconade position why that it came makes no difference how or this defendant there, County in court be Gasconade and was found and that the point. inquiry could and should have no on that On the other only made hand, says county in that be was because wrongfully an and summoned there to answer had been sued jointly, right action him Haeffner and that he had a and subjecting in that and without himself to appear court by plaintiff same cause action. another suit directly right privilege pending party of a interested in a in pending, to attend the trial of same the court where being jurisdiction, going solely resident of that there to attend subjecting ease, liability being himself to in without action that court sued in another jurisdiction, upheld juris- principle well established at common law and in most 50 Corpus Juris, page 548, dictions. Thus section it said: jurisdictions, majority that, “In is now rule established witnesses, suitors, like in attendance in a court outside of the ter- residence, ritorial their are immune from attending court, process, while civil before reasonable time going returning after, court and to their homes.” A array thirty from some of cases states are formidable cited as so including holding, Supreme States, Court the United which Ramsay, Stewart v. U. L. Ed. “The said: greater weight founded in reason and rule, true well sustained suitors, witnesses, authority, is, coming well as from an- jurisdiction, exempt are other from the civil state service of upon court, during in attendance process while reasonable time going.” pointed is then coming out Section 229 of 50 Juris, page 549, ap- that while states Corpus most this rule is *8 yet alike, jurisdictions in plaintiffs and defendants some plicable to plaintiffs voluntarily who applied it is institute and at- suits jurisdictions residence, in other tend courts therein than that of their is to a sued and at- applicable but that it summoned to A exceptions courts also plaintiffs tend there. few make court State. residents who non-residents of the As to of a state at- are county residence, tending in another than that of their 50 court says: 550, 231, jurisdictions “In Corpus Juris, page section immunity of in respecting suitors in a rule attendance majority pre- of their territorial residence outside generally vails, been held a resident of a who at- it has state litigant county other that of as a in a than his residence tends court brought in of summons in an action privileged is from county.” rule, It is that Missouri is out of line to this said Ruling 21 Case In later what extent this is true. but see we will 1305, immunity is 50, page the rule stated thus: “The Law, section process in attending of a while trial civil witness a from service of give residence to be than that of his evidence seems a other state recognized. like universally to whether a suitor is entitled to a As states in the authorities. In some exemption there is some conflict exempt is from a non-resident witness hold while the courts suit, in suitor is not entitled another non-resident process service of by the view has been taken exemption. a different But such an party both and witness great weight authority, which declares parties are privilege, especially in states where alike entitled enough is witnesses. Thé rule broad entitled to examined gen- defendants, has no distinction plaintiff as well as include de- contrary erally although there are them, made between been ap- especially is rule out that the pointed cisions.” It is also there defendants, plicable. though plaintiffs voluntarily go not to who to. jurisdictions prosecute into other their own cases. to non As going court, residents of counties is into such counties to attend this “ Ruling Law, 1312, said in page Case immunity section 58: decisions parties reference to of witnesses or from service of state, process within the same summons counties other than residence, their general are conflict. It is the rule that one iswho good party faith in attendance as a and witness on the trial of county privileged cause in a other than that of his residence is process. privilege from service of civil It is held that this ex going returning tends to while is person such to court and there ’’ Fosha, from. In the annotations to Underwood v. a Kansas many Ann. is proposition Cas. cases are cited to‘the that: “It good general that one who is in faith in rule attendance as a party upon witness trial of a county cause other than residence, is from privileged that of his the service of civil process. privilege It person going is held that this extends to such while ishe returning . . general to court therefrom. is the rule attending that a court as party in a other who than of his residence cannot process. be served with civil This privilege process may from the service of civil be claimed him going to court while he and until he has had a reasonable time to ’’ return to his home. It is useless to cite the up multitude cases holding may rule law. The same found cited the authori ties Springfield Appeals we have mentioned. The Court of in con sidering Moore, State ex rel. Weast v. App. 147 S. “If question by said: we determine the weight authority, it must be answered in the affirmative. In Sanborn, Mullen L. R. A. the authorities are collected eighteen pages, consisting a note and an examination thereof *9 will practically disclose that the authorities are unanimous and party hold that a non-resident to a suit proc cannot be served with attending ess within temporarily purpose while the state for the party as a a . . and witness. late cases are collected Co., S.) 65 214, (N. Breon v. Lumber E. 24 R. 276; S. L. A. Barber (N. S.) 663; v. 82 14 Knowles, N. E. L. R. A. United States Zavelo, 536; Carter, 884; v. 177 Fed. Chittenden v. 74 Atl. Brook v. they rel., 790; Long 79 Hawken, State ex v. 79 Atl. Atl. fully proposition litigant sustain the that the privileged is while so attending foreign party as a in a state. If we a are witness by controlling court, not bound decisions of our own we would be adopt by great' weight authority.” inclined supported the rule that the It is to be noted above authorities decisions uphold exemption in this State do not to the full the broad rule attending process suitors and witnesses from of civil while service county good other than of their court in faith in a state or
185 wholly repudiated courts have Indeed it seems ohr residence.* aor by a suitor mere attendance at court either doctrine that such is had on action witness, process when service of another action. Since ground discharge such witness, is for from- or suitor in civil cases longer made is no physical person arrest of the witnesses that suitors State, ancient reason for the rule tending to interfere court, as attending shall not be while arrested longer Service exists. justice, no with the due administration attending does court party of summons in another case on (Christian court procedure seriously business interfere only is not 96), 20 Williams, v. reason for rule. Williams, supra,
In the case of Christian v. one of the defendants, County, Randolph attending a resident of was court in St. Louis there, pending as a witness in a ease and while attending so was served with summons in the case brought mentioned in St. Louis. jurisdiction, On his the court refused discharge him, ruling. approved and this court This seems to be a holding direct person that the mere fact that a inis attendance at court as a witness place residence, other than his and the same would apply to reason exempting a suitor is no him from service in a civil it should also be action. But noticed that in the Christian case plaintiff in the in which suit the service was had on defendant not interested in the was case on trial when the service was had and way causing was in no instrumental he' sued to be jurisdiction, “found” in that and in that case this court was careful say: “Of course these remarks do not apply to a case where a party by compelled fraud or by induced process criminal to enter within the boundaries other that of than, his residence. which Bast, 493; As to see Vastine v. Capital City Mo. Bank v. 334; Byler Jones, Knox, Mo. 261.” Mo. Baisley The case of Baisley, S. W. by thus stated “Ac- court:, libel; parties tion for both are residents of County Baker Oregon. State of The defendant had a suit attachment ’ plaintiff, who owned a farm in Chariton County. While pending was the suit attachment Chariton County, and while progress the suit attachment was of trial, and while parties both thereon, present were in attendance action brought by plain- tiff and form, service on defendant usual October 28, 1885. Defendant, only appearing purposes for the plea, pleaded ground of the court on of the non-resident of parties action, both as aforesaid.” As validity of attending on defendant while he in Chariton *10 County brought, plaintiff the action him in court, “In court said: the recent case of Christian v. Williams, 111 Mo. 429, we held that where a attending court in this State in the capacity (witness) party county in a other than that of residence,
his might that he be sued in county of the foruin of his attendance, and that under the first clause of said Section 2009, he was ‘found’ within meaning clause, of that if the sheriff served process him, and that in such circumstances he could not success- ’’ fully plead jurisdiction to the of the court where he was thus served. And the court further defendant, noted that plaintiff in the case on trial when served, being he was a non-resident of State, could any under our be county statute sued where service could be had on him under fourth subdivision Section Revised Statutes 1929. Then as real upholding basis of the service in “Besides, this court said: (a non-resident), by volun- tarily coming into (and the State of Missouri bringing suit in Chari- subjected County), ton himself to the courts; of our certainly statutory under the provisions so already (Cases cited. cited.) Again authority goes no to the holding extent of per- that a going may into just son another state not be sued like an inhabitant state; of such and it is difficult on principle why to see a non-resi- may validly dent served with summons in a civil days action a few convenes, yet before court process similar day invalid the after court convenes. We think the better rule is Connecticut, that announced in where it is held that a non-resident party plaintiff voluntarily who enters court in that state as amend- ordinary process able to civil in another if action, as he were a Vose, resident. [Bishop Conn. In Bledsoe v. Letson 1.]” (Mo. 215 W. App.), when sued in Audrain County, filed of the ground court on the being Illinois, he, ivas, a citizen of when process, served with attending court as a witness another pending there, but it any not shown that the interest in such other case causing or was instrumental to come into Audrain County as witness or suitor. That case is in accord with the Baisley cases, supra, goes Christian and no further. In State Moore, App. ex rel. Weast v. Spring- S. W. Appeals fell into error in its interpretation field Court of the holding Williams, Baisley Baisley, in Christian v. court’s upholding the doctrine supra, as that “no exempt non-resident is process attending from service of while here, this State” never held when it was this court has so shown that the defendant wrong- sued as a defendant in an was in the action brought against him, fully plaintiff, the same and was there freeing from solely purpose for the himself jurisdiction. by plea court in other case Such is this case. such however, righted Appeals, Court itself in the case The- Springfield App. 471, Skelton, S. W. when it held Groce v. obtain a defendant that a could not over *11 residence, then bringing against county of Ms first suit him in the of county, that depositions in serve notice on him to take another plaintiff’s attend residence, came there to and when defendant taking bring a new one depositions, of the the first suit dismiss there get on the same cause of action and service on defendant plain- theory brought county, was second suit in the court, plea tiff to the on a resided and “found.” That was defendant in jurisdiction, inquired “found” why how was into defendant county ascertaining facts show- plaintiff’s of residence and on artifice, if ing not procured by presence plaintiff’s that his there The fraud, jurisdiction. stated, plea in the manner sustained the in plaintiff bringing the suit produced in that in case evidence that county giving notice to take of then defendant’s residence residence, do so depositions county plaintiff’s he not of did bring faith, intending in bad first ease and dismiss the at the time to county when defendant plaintiff’s the second in residence one of appeared but the court depositions, there under the notice take by “Legal said: and actions fraud is measured the facts attorney for parties probably and the is that the net result. true preconceived a new plaintiff in this idea file case did not have a gave depositions in West to take suit Plains the time notice he taking that County action, yet came for the Greene before the time dismissing because he the case deposition undoubtedly had idea actually day depositions were to he filed suit the before the fraud, legal all authorities taken. This amounts to clearly procured misrepresentation process or hold that fraud stand, in this permitted cannot hold the service we must plea case was bad and that the sustained court should have . . somewhat abatement. realize that the rule in Missouri .We States great weight authority in the out of line with the United suitors, witnesses, concerning Cyc. exemption etc. [82 p. 1305, L., process.] 21 B. 497: C. 50 and secs. under,title however, Missouri, eases, All the refuse and even those uphold process which has either an actual procured been cited.)” misrepresentation. (Cases legal facts’ fraud or obtaining legal, actual, presence if this case show fraud him County getting and then service on defendant Gasconade acting good bringing plaintiff this case. If faith in County, then suit Plaeffner in Gasconade this defendant and adversely juris when the court decided to him on the county diction in that should have over the appealed wronged, thought the case if he was or should have county brought abandoned in that suit and later suit residence, found defendant’s or waited until defendant could be attending County .in court in the case Gasconade than other while there him. should present The trial court in the have sustained the jurisdiction. defendant’s to the court’s The other though contention of the court erred in sustaining jurisdiction of defendant’s court, yet the question of waived the general entered his appearance by participating in trial *12 on ease its merits. adverse The record on court’s shows that the ruling question on the jurisdiction, on the proceeded of the trial merits and the defendant testified have noted on that issue. We defendant jurisdiction combined in his filed a to the plea answer of court, stating the the facts matters of as to that issue also defense to the doing merits. the In followed this the defendant statute, 768, provides Section “the 1929, Revised Statutes which only pleading part on the of or an the either a demurrer defendant is ’’ answer. A only' by record, demurrer shown reaches defects and as regular jurisdic the record in this the want of case was only record, tion could sary by be shown it was neces evidence dehors the by to by raise such a defense it has been held answer. And so long necessary line of cases in this is and in fact proper State that it go when both pleas join abatement, plea are to be insisted on ing to jurisdiction sustaining plea the court’s such when the facts record, aré not of for competent plea merits. “It was the defendants to unite in matter in abatem'ent the same answer matter in Williams, 429, 443, bar.” Mo. 20 S. W. v. 111 [Christian 96; Little 79 Harrington, 390; Byler Jones, v. 71 v. Mo. Mo. 261.] 243, In 212 Co., App. 239, Roberts v. American Nat. Assur. Mo. 390, S. W. of action did court said: “The fact that the cause Schuyler County by anything accrue in was not disclosed petition, improper jurisdiction of nor did the of on account absence only way appear Hence, venue there or the sheriff’s' return. jurisdiction juris question by plea lack to' the court’s Our Harrington, 71 Mo. diction v. answer. 390.] [Little contemplates answer, must contain all the de Code but one which fenses, and, therefore, coupling of a to the merits, by answer, which does must be raised with a 574; jurisdiction. Lehman, 93 Mo. waive the matter Cohn v. 481, 487; Mer Meyer v. v. Phoenix Thomasson Co., Ins. Mo. Co., 182 Mo. cantile, etc., 485; Railroad Co., Ins. Newcomb v. Mo. holding. as so 687,” cited and a number other Missouri cases are filing by therefore, is, clearly wrong Plaintiff in his contention jurisdiction, de merits, joined plea his answer to the to his fendant abandoned or waived the latter. distinguished This many case must be from the cases'where the facts
showing
jurisdiction, as,
thé want of
instance,
for
a lack
proper
summons or
same,
a defective
or that
the case jurisdiction,
wrong
appear
in the records of
court,
quash,
demurrer or motion to
then snob defect must be raised
so
“But
in such cases
if not
raised will be
waived.
deemed
justice courts)
the defect
(appeals from
and in other cases where
return,
or in
appears
petition
on
of the
face
answer;
is not en
point
cannot be raised
defendant
plead
join
in one
titled to
such
merits
defense with a defense
Nat. Assur.
ing, as
v.
is in
American
the case at bar.”
[Roberts
Co.,
also,
point,
on this
See,
390.
App.
Mo.
212 S. W.
McQuav
(Mo.
Thomasson
App.),
Harris
300 W.
307:
Co., 217
116 S.
1092.1
Mercantile Town Mut. Ins.
Implement
point
Kingman St.
on
Louis
cases
are
reviewed
Co.,
App.
118 S. W.
Bantley
v.Co.
Bros. Hardware
question
500.
and the
conclusion reached that where
person
record,
appears
must
face
advantage
motion,
appropriate
in such
take
of it bv
demurrer
pleading
But
the defect.
waives
merits the defendant
of the defendant
where the
over the
record,
join
may
his
and should
not shown bv
*13
plea
plea
jurisdiction
does
to
to the merits and
plea
jurisdiction by
doing.
his
waive
to the
so
When,
here,
necessary
join
plea
to
as
is
to
it
and
proper
plea
answer, it is
same
the iurisdietion
to the merits
and this
court,
prac
to
and the better
held
be in the discretion
the trial
issues, trying
question of
separate
is to have
tice
trials of these
Jones,
[Byler
first,
79
v.
Mo.
in this case.
iurisdietion
as
done
McQuav
App.),
(Mo.
W. 305. See Sec.
300 S.
263-4: Harris
261.
v.
583;
413,
Railroad, 234
1929;
396,
137 W.
R.
S.
951.
Mo.
S.
Clark v.
245,
Co.,
239,
App.
Roberts v.
201 Mo.
Nat.
American
Assur.
.]
390
jurisdiction
plea to the
Tt
trial
is
that if a
also well settled
record,
plea
judgment of
or
first
and
overruled
order
judgment
The case
appeal lies.
such is
a final
which an
from
yet
merits
trial on the
and
court
the defendant must abide the
steps
by appeal.
before he
take
error
can
to correct the
[Case
App.
Evans. 80
148 Jones v.
Smith. 215 Mo.
257 S. W.
621.
:
Tamblyn
Chicago
Co.,
App.
565:
Mo.
& Zinc
Mo.
Lead
be sure that court right will take law or the view of the right take the view of the facts. question is, then, properly The after here must
joining his answer the merits in one and to procuring on both generally his for trial preparing evidence and issues, ruling announced compelled, or when the has made a court jurisdiction, except question a decision adverse to him on the virtually ruling, step aside, the court’s his indebtedness confess trial of by becoming spectator parte ex mere to an only? Of merits, question and then appeal on the course, any action such defendant must not affirmative take case showing willing ease the whole that he is submit trial of taking a jury to the court or such pending, before which it is 471, 521, change (Cook Printing Co., of venue v. Globe 332), S. W. and must asking whole for a of the continuance counterclaim, filing a part not seek such as affirmative relief on his discussing etc. mere fact of question We are whether the here by the raised participating his on the issues the trial of the merits appearance answer, having objected limited his within every step every keep the court and exhausted means to showing conclusively him, its will taken as over jurisdiction. here. question waiver of the That i§ any going far on the We do not find case in this court by plaintiff of waiver. will most relied We note the eases a waiver. holding there is City Appeals the Kansas Court of an Co., Kronski v. Pac. Railroad Missouri filing a defendant, after justice appeal peace. from a of the ground the “return justice on the motion to dismiss the defend give jurisdiction over did not the court constable court, defend ant,” its to the circuit appealed tried case and by ap held The court appeared ant had a trial de novo. *14 the merits, waived defending pearing the defendant and on the It is well summons.” question of “the in the service of the defect the tries justice circuit court the appeals settled that on from courts pro in the irregularities defects disregards and all case de novo and point here. in ceedings justice is not in That case the court. 82, 230 W. S. Railway Co., 287 Mo. Cudahy Packing Co. v. general ap- entry of is an justice court appeal holds that an from a defects irregularities and waives pearance in the court and circuit Meyer v. justice overruling court, point on this of service the said: court there the Co., 184 Mo. 83 W. but Insurance may may in abatement matter “It be conceded that defensive being waived in bar without pleaded answer with matter the same an ordinary action thereby. may ‘in an conceded that also be gives want of service solely challenge jurisdiction for appearance Southern, Bulger ex rel. person.’ no [State ap special also be that after such a c. Let it conceded Mo. l. 621.] ordinarily proper may proceed in a pearance, movant jurisdiction. . . . Let waiving thereby point of without the ease may things would, again that he do such absent the conceded it be general objection, appearance, to a without previous have amounted 390, quotes waiving objection.” Harrington, the Little Pleading, 345, thus: Code section “Matter approval from Bliss pending action as matter is much a defense in abatement may say and to that the defendant reserve latter until bar, issues, regard upon former, had a shall been trial have statute; interpolate what is not in the would inconsistent would requirements.” simple plain and with its Railroad, 81 S. a suit
In Newcomb v.
doing
foreign
State,
in this
corporation
business
said:
court
original
summons was not
point is made
served on
“The
bring
manner as to
defendant
defendant
such
into court
The
over it.”
give the
defect in the sheriff's
and
court
statutory
was that
it did
show the
re
to the summons
return
agent
had on
quirement
the service was
defendant’s
that when
in St.
business,
place
office or
or
Louis, he was at defendant’s
that de
place
no
office
business where
writ could
fendant had
such
a mere defect
matter of service
did
This was
and
be served.
jurisdiction of the
and
go
the territorial
the defect
record,
ruling
the court
appeared
at
on
face of
struck
return
not be
in the sheriff’s
could
controverted.
facts stated
procedure
complicated,
case was
the court
in that
held that:
The
bring
return
insufficient
this reason this
“For
it
court,
quash
motion
had been
and if a
made the court
into
.
.
it.
. The defendant could have
have sustained
made
should
quash
appearance
purpose,
for the
and moved to
special
return
appearing
face,
insufficiency
its
if
on
the court
over
had
for
have preserved
exception
the defendant could
its
the motion
ruled
if
had
withdrawn,
proceeded
the court
then
have
render
judgment
been
judgment
would have
reversed
(cid:127)
system plea
.
.
It is true
our
appeal.
that under
in abate-
n
by plea
answer,
is not
bar
same
ment
waived
the de
all his
in one
must include
defenses
answer. But
in
fendant
sufficiency
point
presented
of this return
not a
to be
merits)
place
all.
It was out of
(to
the answer.”
The
containing
its answer
both
filed
abatement
properly
the merits. The court
held that
defenses to
as the
appeared
of the summons
on the
in the service
face
defect
of the'
advantage
only
record,
quash
be taken
a motion
it could
place
“it
was out
in the answer.”
the summons
*15
ruling
case
in that
is that
substance of the court’s
where the de
striking in the
process
a defect
of
fendant
service
on
merely
be
appears
defendant which
the face of
cannot
on
the record and
controverted,
by
quash
or
the method of
must be
motion
attack
demurrer,
questions
law
if
only,
which raises
of
the court over-
and
quash
the
must
demurrer,
rules the motion
or
stand
point.
following
same or he
the
This is but
the
on the
abandons
general
answering’
going'
and
the
rule that
over
to trial on
merits
par-
a demurrer.
was there said about an answer
waives
What
and
merits,
standing
in the
the
ticipating
trial on
instead of
the motion
being
demurrer,
plea
jurisdiction,
waiver
the
or
a
to the
was said
raising
only
question
of law
and which could
plea
as to a
It is
joined
a.plea
plea
to the merits.
not so
as to a
with
held
to the
by
jurisdiction
proven
of the court to be
evidence dehors the record
going
raised
properly
by answer
the merits also.
Co.,
is well
v.
This rule
illustrated
Thomasson
Insurance
1092;
case, 114
App. 109,
116 W.
same
89 S.
Mo. 485,
S.
right
only objection
was
suit
court and the
jurisdiction
the return of service did
show
was that
over the
apparent
This defect was
of record
defendant.
particular
and the court held that it must
question
law
be taken
purely a
quash
return,
advantage of,
all,
if at
motion to
and not
objection
joining
filed an
answer,
since defendant
answer
appearing on the record
an answer to the
it
merits,
the service
objection
general appearance.
and entered its
to the service
waived the
citing
Railroad,
Newcomb v.
182 Mo. l.
there,
after
c.
“So, in this case there can be no
1069, said:
doubt that
81 W.
gives
over the
expressly
company,
our statute
proper
course,
process
is issued and
served
provided,
upon
if the defendant desires
stand
And
upon it.
insufficient
remedy
especially
unit in this
its
was to move
service and if the motion
then to
same
overruled
withdraw
quash the
appearance. But
defective service was waived
further
from
.
person.
over its
.'
general answer
by the
Meyer
Co.,
v. Insurance
only
to be added
184 Mo.
remains
defendant can
unite
same plead
this court said
481, when
person,
jurisdiction as to the
as well as to
sub
ing
plea to
merits,
waiving
question
without
ject-matter, with
more than that
to the juris
it
no
meant
jurisdiction,
the court had no
one in which
must
diction
mean
did not
the mere insufficient
law and
service
person under
summons
which the court had
upon
in a case
of a
harmony
That case is in entire
writ.
proper Railroad,
rH CO ov
m
the circuit court
St. Louis from
in
prevent
proceeding, further
.the
trial of a suit on an accident
insurance
The suit
policy.
was in:
in
form
service was had in this State
to
usual
the
conformity
and
foreign
companies
service on
statute for
insurance
licensed to do
in this
The defendant did
what
answer,
business
State.
not
but filed
quash
case,
motion
the service and dismiss
is called-a
to
the
which
which,
this court said tendered “matters
defense
abatement”
proper
“challenge
appear
right
do not
the record
which
the
in
plaintiff
an
on
policy
State,
to maintain
action
in this
no
served,”
the summons was
a
matter how
therefore “would be
right
quashed,
right
waiver of the
to have the return
even if such
had
(?)
The matters set forth in
quash
never
existed.”
the motion to
really
dismiss the action
an equitable
the service and
amounted to
cross-petition stating
answer or
that
the cause of action
in
arose
Illinois,
really
resided and defendant
could be and
had,
seeking
been
and service
and the
sued
was
avoid
to
prove
Illinois,
which defendant could make and
defenses
but could
so in this State. The trial court struck
not do
out
so-called
..this
setting up
equitable
dismissing
motion
these
reasons for
not
trying
State. This
case
court held that
the
the trial court
ease,.
right
doing
proceed
and should
so
in the trial of the
holding
joy
that
filing
The reason
this so-called
quash
the service
the nature
motion to
cross-petition to dis-
general
case,
appearance
his
entered
miss
here,
the case
by
petitioner
to be: “The motion filed
stated
that
only
service and return had therein
quashed,
asked
be
it
be
petition
also asked
filed
dismissed
of.
because matters
entirely
alleges
outside
record which
defense
it
do not
exist,
which,
by
and as to which it tenders issues
plea,
verified
merits,
require
their
would
upon
if heard
the introduction of evi-
truthfulness,
their
which
dence to establish
could not be
if.
done
over
had no
defendant.” That
question
presented.
is not decisive of
here
case
strenuously
joins
insisted that a defendant
who properly
is.
plea in
answer a
abatement and
should,
his
the merits
defenses
matter of abatement is
decided
him,
placed
when
be
position
jurisdic-
same
as defendant who raises the
by
quash.
or motion to
difference,
demurrer
however,
tion
fact,
one
former ease the issue is
tried
evidence
any
record,
by
like
other issue of fact
dehors
raised
the answer
law,
latter
is purely
issue
one of
while
incon-
appear
which
trovertible facts
record. The rule
an.
by
which is or can
equiv-
error or defect
be reached
or .an
demurrer
being
only,
motion,
of law
answering
alent
one
go-
is. waived
though
merits,
ing
established,
well
trial on
is .at best a harsh
applicable
and is not and should
rule
the different issues
answer.,
of fact raised
....
participates
Our
is that
fact that a defendant
conclusion
the mere
jurisdiction, properly-
on the merits after his
trial
pur
answer,
for that
having
appearance
his
raised
limited
general
pose
against him,
not amount to
only, has been ruled
does
question.
jurisdictional
appearance
in the case so as to waive
are
pleas
when
in abatement
Such is
in attachment cases
the rule
Block, 130 Mo.
1929;
R.
Co. v.
filed.
Coombs Com.
[Sec.
*17
ruling
St.
668, 32
with
S. W.
This is
accordance
1139.]
446,
Railroad,
App.
Appeals in Jordon v.
Louis Court of
456,
McQuay (Mo.
1155,
79
of Harris v.
S. W.
and the later case
appeal,
300
305.
from the former
App.),
appears
W.
That
S.
242 W.
been tried on its merits after the defendant’s
S.
jurisdiction
being
of his not
a
plea to the
over his
because
was
resident of the
where the suit
had been denied.
question
Nevertheless,
was
the same
tried out on the
and, being
trial,
defendant,
decided
second
the Court of
question
juris
Appeals re-examined the same
held
have been decided for defendant and reversed the
diction should
case.
Co.,
Nat. Assur.
It is also that defendant asked affirmative relief on the thereby question jurisdiction. trial of the merits and waived the owing never The facts are defendant denied four items of the amounting $178. sued on When the trial on account the merits attorney commenced, plaintiff’s stated that he understood that de plaintiff fendant conceded that he owed for these items and that such agreed attorney contested. Defendant’s would not be to the cor When on stand, rectness of this statement. the witness defendant plaintiff agreed that he contracted pay admitted amounting $178. four items of account mentioned At the close plaintiff’s evidence, on the merits and of evidence the whole de unsuccessfully asked the court to jury instruct fendant to find theory on the that the court had no for trying The defendant keep over the defendant. in the case being question refused, alive. This instruction jurisdictional jury asked that- be instructed defendant ver- tbe return a $178, for the amount he had he for owed plaintiff dict admitted plaintiff says which instruction af- It is this asked for plaintiff. jurisdiction. course, waived the Of firmative relief and only, trying merits could not a jury, return verdict for de- plaintiff of his admission that $178. in the face owed fendant object jury returning not if verdict, defendant could The amount, except ground any all, plaintiff for in that on the no jury jurisdiction, the court. The could not pass disallowed on the jurisdictional question and verdict for amount finding was entitled to ask. That would for all the defendant compelling his As court was defendant on evidence. the defend- jury, asking the defendant was ant to submit to verdict not asking jury give. least verdict the could affirmative relief might jury have worded the instruction so to tell the $178, than for more but the effect not to find would have undoubtedly The defendant knew the been the same. court would give such instruction it receded from its and could unless jurisdictional holding question, and case the instruc- merely to defendant but not be beneficial harmless. The tion would *18 jury instruction found for did refuse for. is manifest not the full amount sued that defendant did jurisdictional we are to waive the not inclined intend defense intention on him. to force such likely which questions are discussed are not to arise
Other
might say
plaintiff’s
though
deposition
we
taken in the
again,
necessary,
so much thereof as is
is admissible as
suit, or
former
any
laying
an admission without
foundation
original
evidence
authenticity.
Bank
prove
of Fulton v.
its
except to
[Southern
Nichols,
deposition
202 Mo.
S. W.
could
613.]
calling
impeachment purposes,
at
also for
witness’s
be used
admitted,
if
answers, and,
positively
questions
not
tention to
jury
it,
reading
parts
to,
referred
or all
then
Railroad,
295 S.
Peppers
v.
manner
out
pointed
(Mo.
762;
App.),
plaintiff’s yet done, though plaintiff had previously contracted been yet terms, do this work on the same when two subcontractors to re dropped out of the deal and the subcontractors one of contract work under new made other sub fused to do the agree pay would him for the unless contractor promised, paid, that he was defendant so then work see to it writing, was not though without consideration promise, such [Haynes Johnson, 141 Mo. of Frauds. or void the Statute under 177; Seneca, Hill v. Bank of Bros. App. S. W. 230, 240, 73 W.
App. 307.] The case is therefore reversed and remanded to be retried only being Ferguson
legal Hyde, had on defendant. CC., con- cur. foregoing PEE opinion by Sturgis, CUEIAM: The C., adopted judges opinion of the court. All the concur. Henry of Missouri Relation Relator, J. Horspool,
State George F. and Simon G. Nipper, Haid, Dee William Becker Judges (2d) Appeals. the St. Louis Court S. W. 923. One, Division December 1933. Robinson, E. H. A. E. L. Allen, Gardner and <& Moser Marsalek for relator,