Mertens v. McMahonMertens v. McMahon
This question arises in this way: The defendant was at all times a resident of the city of St. Louis and the plaintiff a resident of Gasconade County. After the road work was all done, the plaintiff, claiming that defendant had agreed to pay him therefor, brought suit against him in St. Louis and got service on him there, the place of his residence. For some reason not fully disclosed by the record, plaintiff later dismissed that suit. Just before dismissing the first suit, plaintiff brought another suit on the same cause of action in Gasconade County, where plaintiff resided, against defendant and the subcontractor, Christ J. Haeffner, also a resident of Gasconade County, claiming that both such defendants were liable to him for the work done and tools furnished in this road work. Plaintiff obtained service on the defendant Haeffner in Gasconade County and had summons issued to St. Louis and served on this defendant there.
On the same day the said second suit was disposed of as stated, September 16, 1925, plaintiff filed in Gasconade County the present or third suit on the same cause of action against this defendant alone and had summons issued and served on him that day by the sheriff of and in Gasconade County. That sheriff testified that he served the summons in the present case on the defendant on the day of the trial of the second suit mentioned “right after the case was decided, before he went down the steps;” that defendant was in that county interested in the case of Mertens v. McMahon and Haeffner and the service in the present case was had on the day that case was tried and disposed of. The summons was regular in every way, issued by the Circuit Clerk of Gasconade County in the case pending there and the service was personal on defendant in that county. The point of importance is that this defendant, who is a resident of St. Louis, having been sued in Gasconade County jointly with Christ J. Haeffner and service had on him in St. Louis, came to Gasconade County to defend that action on his plea to the jurisdiction of that court,
This the defendant did, and, entering his appearance for that purpose only, filed his combined plea in abatement and answer in the present case. The answer on the merits is a general denial coupled with a plea that the debt sued for was a promise to answer for the debt of Haeffner, not in writing, and that the promise was without consideration. The plea in abatement or to the jurisdiction of the court averred that defendant was not a resident of Gasconade County, where the suit was filed and pending, but of St. Louis; that the filing of said suit and the service of summons on defendant while in Gasconade County was merely colorable and was fraudulent and void and done for the sole purpose of enabling plaintiff to confer jurisdiction on the Circuit Court of Gasconade County over the defendant, a resident of St. Louis. The plea to the jurisdiction recited the filing of the first suit in St. Louis, the obtaining of jurisdiction there, and the dismissal of that suit. Defendant further averred that “he was a resident of the city of St. Louis; that prior to the 16th day of September, 1925, plaintiff wrongfully instituted suit in the Circuit Court of Gasconade County against defendant herein and Christ J. Haeffner, upon the alleged cause of action set forth in plaintiff‘s petition filed herein, and wrongfully had summons issued against this defendant and served upon him, and that pursuant to said summons in said suit this defendant was required and compelled to and did file his plea in abatement in said cause denying the jurisdiction of this court therein; that in obedience to said summons and for the protection of his interests this defendant was compelled and required to appear at the Circuit Court of Gasconade County, held at Hermann, on the 16th day of September, 1925, and was required and compelled to testify in support of his said plea in abatement, and that upon the hearing of the evidence and arguments upon said plea in abatement in said cause the same was by the court sustained and said cause dismissed; that this defendant was served with the summons therein in the corridor of the courthouse of Gasconade County at Hermann, Missouri, on the 16th day of September, 1925, as he was leaving the court room, immediately following the court‘s decision sustaining said plea in abatement, and while still in the county of Gasconade for the purpose of presenting and defending the said plea in abatement; and while still in said county of Gasconade the plaintiff did wrongfully and fraudulently cause to be prepared the petition herein and did cause to be issued the summons herein and did procure the sheriff of the county of Gasconade to serve the said writ of summons upon him in this action; that the filing of this
When the case came on for hearing the court by common consent first heard the plea in abatement or to the jurisdiction and defendant‘s allegations in that respect were proven without contradiction. The pleadings and record of the court in the former or second suit by plaintiff against this defendant and Christ J. Haeffner jointly in Gasconade County were put in evidence and showed that this defendant had been served with summons in that case in St. Louis, had filed his answer and plea to the jurisdiction of the court in Gasconade County over him, and that the court heard and sustained that plea, discharging the defendant; that defendant was present in court and testified in his own behalf on that hearing and that the present case was filed and summons issued and served on defendant while yet in the courthouse.
That plaintiff had prepared and filed the present suit and had summons issued and ready for service in the hands of the sheriff, in anticipation of the action of the court in sustaining defendant‘s plea to the jurisdiction in the other suit, is too plain for argument. While there is nothing to show plaintiff‘s bad faith in bringing the other or second suit in Gasconade County jointly against the two defendants, one of which resided there, and thus attempting to get jurisdiction over this defendant for trial in that county, it is apparent that plaintiff was determined to try the case in his own county of Gasconade instead of the defendant‘s county, the city of St. Louis, and to that end brought the present suit so as to get service on defendant while he was in Gasconade County attending the trial of such other case should the result be as it was.
The first question for our determination is whether the jurisdiction of the Circuit Court in Gasconade County obtained in the manner stated can be upheld. Our statute,
As we have said, this plaintiff anticipated that such would be the action of the court in that case and filed the present independent suit in Gasconade County against this defendant McMahon alone and seeks to sustain the jurisdiction of that court over the defendant on the theory that plaintiff brought the suit in the county within which the plaintiff resides and the defendant was found. This is in accordance with the strict terms of the statute as defendant was found and served with process in Gasconade County, and plaintiff takes the position that it makes no difference how or why this defendant came to be in Gasconade County and was found there, and that the court could and should have made no inquiry on that point. On the other hand, the defendant says that he was in that county only because he had been wrongfully sued and summoned there to answer an action against him and Haeffner jointly, and that he had a right to appear in that court and county without subjecting himself to another suit by plaintiff on the same cause of action.
The right and privilege of a party directly interested in a pending case to attend the trial of the same in the court where pending, not being a resident of that jurisdiction, by going there solely to attend court in that case, without subjecting himself to the liability of being
It is to be noted in the above authorities that the decisions in this State do not uphold to the full the broad rule of exemption of suitors and witnesses from service of civil process while attending court in good faith in a state or county other than that of their
In the case of Christian v. Williams, supra, one of the defendants, a resident of Randolph County, was attending court in St. Louis as a witness in a case pending there, and while so attending was served with summons in the case mentioned brought in St. Louis. On his plea to the jurisdiction, the court refused to discharge him, and this court approved the ruling. This seems to be a direct holding that the mere fact that a person is in attendance at court as a witness at a place other than his residence, and the same would apply to a suitor in a case, is no reason for exempting him from service in a civil action. But it should also be noticed that in the Christian case the plaintiff in the suit in which the service was had on defendant was not interested in the case on trial when the service was had and was in no way instrumental in causing the person he sued to be “found” in that jurisdiction, and in that case this court was careful to say: “Of course these remarks do not apply to a case where a party is induced by fraud or compelled by criminal process to enter within the boundaries of a county other than that of his residence. As to which see Vastine v. Bast, 41 Mo. 493; Capital City Bank v. Knox, 47 Mo. 334; Byler v. Jones, 79 Mo. 261.” The case of Baisley v. Baisley, 113 Mo. 544, 21 S. W. 29, is thus stated by the court: “Action for libel; both parties are residents of Baker County in the State of Oregon. The defendant had brought a suit by attachment against the plaintiff, who owned a farm in Chariton County. While the suit by attachment was pending in Chariton County, and while the suit by attachment was in progress of trial, and while both parties were in attendance thereon, the present action was brought by plaintiff and service had on defendant in usual form, October 28, 1885. Defendant, appearing only for the purposes of the plea, pleaded to the jurisdiction of the court on the ground of the non-resident of both parties to this action, as aforesaid.” As to the validity of the service on defendant while he was attending court in Chariton County as plaintiff in the action brought by him in that court, this court said: “In the recent case of Christian v. Williams, 111 Mo. 429, we held that where a person was attending court in this State
The other contention of plaintiff is that though the court erred in not sustaining defendant‘s plea to the jurisdiction of the court, yet the defendant waived the question of jurisdiction and entered his general appearance by participating in the trial of the case on its merits. The record shows that on the court‘s adverse ruling on the question of jurisdiction, the trial proceeded on the merits and the defendant testified on that issue. We have noted that defendant combined in his answer filed a plea to the jurisdiction of the court, stating the facts as to that issue and also matters of defense to the merits. In doing this the defendant followed the statute,
This case must be distinguished from the many cases where the facts showing the want of jurisdiction, as, for instance, a lack of proper summons or a defective service of the same, or that the case is brought in the wrong jurisdiction, appear in the records of the court, for
When, as here, it is proper and necessary to join the plea to the jurisdiction and the plea to the merits in the same answer, it is held to be in the discretion of the trial court, and the better practice is to have separate trials of these issues, trying the question of jurisdiction first, as was done in this case. [Byler v. Jones, 79 Mo. 261, 263-4; Harris v. McQuay (Mo. App.), 300 S. W. 305. See
It is also well settled that if a trial of the plea to the jurisdiction is first had and the plea overruled by order or judgment of record, such is not a final judgment from which an appeal lies. The case is yet in court and the defendant must abide the trial on the merits before he can take steps to correct the error by appeal. [Case v. Smith, 215 Mo. App. 621, 625, 257 S. W. 148; Jones v. Evans, 80 Mo. 565; Tamblyn v. Chicago Lead & Zinc Co., 161 Mo. App. 296, 301, 143 S. W. 1095.]
It is also held, and we think properly so, that where a defendant must join in his answer both his plea to the jurisdiction of the court, requiring evidence to sustain same, and his plea to the merits, he has a right to anticipate that both issues will be tried and to take depositions of witnesses to support both issues and otherwise prepare for trial as to both. The trial of the plea to the jurisdiction on evidence dehors the record often raises a mixed issue of law and fact, and it is the common experience of lawyers that they can never
The question here is, must the defendant then, after properly joining his plea to the jurisdiction and to the merits in one answer and procuring his evidence and preparing generally for trial on both issues, be compelled, when the court has made a ruling or announced a decision adverse to him on the question of jurisdiction, except to the court‘s ruling, step aside, virtually confess his indebtedness to plaintiff by becoming a mere spectator to an ex parte trial of the merits, and then appeal on the question of jurisdiction only? Of course, such defendant must not take any affirmative action in the case showing that he is willing to submit the trial of the whole case to the court or jury before which it is pending, such as taking a change of venue (Cook v. Globe Printing Co., 227 Mo. 471, 521, 127 S. W. 332), or asking for a continuance of the whole case, and must not seek affirmative relief on his part such as filing a counterclaim, etc. We are here discussing the question whether the mere fact of his participating in the trial of the merits on the issues raised by the answer, having objected to the jurisdiction and limited his appearance at every step and exhausted every means to keep the court within its jurisdiction over him, will be taken as conclusively showing waiver of the question of jurisdiction. That is the case here.
We do not find any case in this court going that far on the question of waiver. We will note the cases most relied on by plaintiff and the Kansas City Court of Appeals as holding that there is a waiver. Kronski v. Missouri Pac. Railroad Co., 77 Mo. 362, 368, was an appeal from a justice of the peace. The defendant, after filing a motion to dismiss in the justice court on the ground that the “return of the constable did not give the court jurisdiction over the defendant,” tried its case and appealed to the circuit court, where defendant appeared and had a trial de novo. The court held that by appearing and defending on the merits, the defendant waived the question of “the defect in the service of the summons.” It is well settled that on appeals from justice courts the circuit court tries the case de novo and disregards all irregularities and defects in the proceedings in the justice court. That case is not in point here.
Cudahy Packing Co. v. Railway Co., 287 Mo. 452, 230 S. W. 82, holds that an appeal from a justice court is an entry of general appearance in the circuit court and waives irregularities and defects of service in the justice court, overruling on this point Meyer v. Insurance Co., 184 Mo. 481, 83 S. W. 479, but the court there said: “It may be conceded that defensive matter in abatement may be pleaded in the same answer with matter in bar without being waived thereby. It may also be conceded that ‘in an ordinary action an appearance solely to challenge jurisdiction for want of service gives no jurisdiction of the person.’ [State ex rel. Bulger v. Southern, 278 Mo. l. c. 621.] Let it also be conceded that after such a special appearance, in a proper case, movant ordinarily may proceed with the case without thereby waiving the point of jurisdiction. . . . Let it be again conceded that he may do such things as would, absent the previous objection, have amounted to a general appearance, without waiving the objection.” Little v. Harrington, 71 Mo. 390, quotes with approval from Bliss Code Pleading, section 345, thus: “Matter in abatement is as much a defense to the pending action as matter in bar, and to say that the defendant may reserve the latter until a trial shall have been had upon the issues, in regard to the former, would interpolate what is not in the statute; would be inconsistent with its plain and simple requirements.”
In Newcomb v. Railroad, 182 Mo. 687, 81 S. W. 1069, a suit against a foreign corporation doing business in this State, the court said: “The point is made that the original summons was not served on the defendant in such manner as to bring the defendant into court and give the court jurisdiction over it.” The defect in the sheriff‘s return to the summons was that it did not show the statutory requirement that when the service was had on defendant‘s agent in St. Louis, he was at defendant‘s office or place of business, or that defendant had no such office or place of business where the writ could be served. This was a mere defect in the matter of service and did not go to the territorial jurisdiction of the court and the defect struck at appeared on the face of the record, the court ruling that the facts stated in the sheriff‘s return could not be controverted. The procedure in that case was complicated, but the court held that: “For this reason this return was insufficient to bring the defendant into court, and if a motion to quash it had been made the court should have sustained it. . . . The defendant could have made a special appearance for the purpose, and moved to quash the return for the insufficiency appearing on its face, and if the court had overruled the motion the defendant could have preserved its exception and have withdrawn, and if the court had then proceeded to render judgment for the plaintiff the judgment would have been reversed on appeal. . . . It is true that under our system a plea in abatement is not waived by a plea in bar in the same answer, and the defendant must include all his defenses in one answer. But the insufficiency of this return was not a point to be presented by the plea (to the merits) at all. It was out of place in the answer.” The defendant had filed its answer containing both the plea in abatement and defenses to the merits. The court properly held that as the defect in the service of the summons appeared on the face of the record, it could only be taken advantage of by a motion to quash the summons and that “it was out of place in the answer.” The substance of the court‘s ruling in that case is that where the defendant is merely striking at a defect in the service of process on
This rule is well illustrated by Thomasson v. Insurance Co., 217 Mo. 485, 116 S. W. 1092; same case, 114 Mo. App. 109, 89 S. W. 564, where the suit was brought in the right court and the only objection was that the return of service did not show jurisdiction over the particular defendant. This defect was apparent of record and was purely a question of law and the court held that it must be taken advantage of, if at all, by motion to quash the return, and not by answer, and since defendant filed an answer joining the objection to the service appearing on the record with an answer to the merits, it waived the objection to the service and entered its general appearance. The court there, after citing Newcomb v. Railroad, 182 Mo. l. c. 707, 81 S. W. 1069, said: “So, in this case there can be no doubt that our statute expressly gives jurisdiction over the defendant company, provided, of course, that the proper process is issued and served upon it. And if the defendant desires to stand upon the insufficient service of the writ in this case, its remedy was to move especially to quash the same and if the motion was overruled then to withdraw from further appearance. But the defective service was waived by the general answer to the jurisdiction over its person. . . . It only remains to be added that in Meyer v. Insurance Co., 184 Mo. 481, when this court said the defendant can unite in the same pleading a plea to the jurisdiction as to the person, as well as to the subject-matter, with a plea to the merits, without waiving the question of jurisdiction, it meant no more than that the plea to the jurisdiction must be one in which the court had no jurisdiction of the person under the law and did not mean the mere insufficient service of a summons in a case in which the court had jurisdiction upon a proper service of the writ. That case is in entire harmony with the decision in Newcomb v. Railroad, 182 Mo. 707.”
Both the procedure and the question involved in State ex rel. v. Grimm, 239 Mo. 135, 143 S. W. 483, are peculiar and unusual, and I do not see that the question of waiver involved here was there involved or decided. That is a case by prohibition in this court to
It is strenuously insisted that a defendant who properly joins in his answer a plea in abatement and defenses to the merits should, when the matter of abatement is decided against him, be placed in the same position as a defendant who raises the question of jurisdiction by demurrer or motion to quash. The difference, however, is that in the former case the issue is one of fact to be tried on evidence dehors the record, like any other issue of fact raised by the answer while in the latter case the issue is purely one of law, the incontrovertible facts as to which appear of record. The rule that an error or defect which is or can be reached by demurrer or an equivalent motion, being one of law only, is waived by answering and going to trial on the merits, though well established, is at best a harsh rule and is not and should not be applicable to the different issues of fact raised by the answer.
Our conclusion is that the mere fact that a defendant participates in the trial on the merits after his plea to the jurisdiction, properly raised by answer, and having limited his appearance for that purpose only, has been ruled against him, does not amount to a general appearance in the case so as to waive the jurisdictional question. Such is the rule in attachment cases when pleas in abatement are filed. [
It is also urged that defendant asked affirmative relief on the trial of the merits and thereby waived the question of jurisdiction. The facts are that defendant never denied owing four items of the account sued on amounting to $178. When the trial on the merits commenced, plaintiff‘s attorney stated that he understood that defendant conceded that he owed plaintiff for these items and that such would not be contested. Defendant‘s attorney agreed to the correctness of this statement. When on the witness stand, defendant admitted that he contracted with plaintiff and agreed to pay the four items of account mentioned amounting to $178. At the close of plaintiff‘s evidence on the merits and of the whole evidence, defendant unsuccessfully asked the court to instruct the jury to find for defendant, this on the theory that the court had no jurisdiction in the case over the defendant. The defendant was trying to keep the jurisdictional question alive. This instruction being refused,
Other questions are discussed which are not likely to arise again, though we might say that plaintiff‘s deposition taken in the former suit, or so much thereof as is necessary, is admissible as original evidence as an admission without laying any foundation except to prove its authenticity. [Southern Bank of Fulton v. Nichols, 202 Mo. 309, 323, 100 S. W. 613.] The deposition could be used also for impeachment purposes, calling the witness‘s attention to the questions and answers, and, if not positively admitted, then reading to the jury the parts referred to, or all of it, in the manner pointed out in Peppers v. Railroad, 316 Mo. 1104, 295 S. W. 757, 762; Shull v. Kallauner (Mo. App.), 300 S. W. 554. The trial court erred in this respect. We will also say that under plaintiff‘s version of the contract made with defendant, the work had not yet been done, and though plaintiff had previously contracted with two subcontractors to do this work on the same terms, yet when one of the subcontractors dropped out of the deal and plaintiff refused to do the work under a new contract made with the other subcontractor unless the defendant would agree to pay him for the work or see to it that he was paid, and defendant so promised, then such promise, though not in writing, was not without consideration or void under the Statute of Frauds. [Haynes v. Johnson, 141 Mo. App. 506, 126 S. W. 177; Hill Bros. v. Bank of Seneca, 100 Mo. App. 230, 240, 73 S. W. 307.]
The case is therefore reversed and remanded to be retried only on legal service being had on defendant. Ferguson and Hyde, CC., concur.
PER CURIAM:—The foregoing opinion by STURGIS, C., is adopted as the opinion of the court. All the judges concur.