201 Mo. App. 239 | Kan. Ct. App. | 1919
— This is an action upon a policy''* insurance on the life of Ralph Goodrich Smith. The
After the issuance and assignment of the policy, the insured removed to and resided in the town of Leaks-ville, State of North Carolina, where he died on July 16, 1915. Plaintiff, Roberts, was appointed administrator of his estate by the probate court of Schuyler county, Missouri on the.day of., 1917, and thereafter, on September 4, 1917, this suit was instituted in the circuit court of said Schuyler county, returnable to the October, 1917, term, which began on the 15th of that month. The petition alleged the existence of the defendant as an insurance corporation organized under the laws of Missouri, the issuance of the policy, the death of insured on the date aforesaid and the appointment of an administrator. Nothing was said in the-petition as to the place of insured’s death. Service was obtained on the defendant at its home office in the city of St. Louis, Missouri, on September 5, 1917.
On the return day, October 15, 1917, the defendant filed its answer which contained first a plea to the jurisdiction of the court over the cause and the person of defendant, with a prayer that defendant be dismissed with its costs, and next a plea to the merits of the cause based upon the charge that the policy was not in force at the time of Smith’s death, because of his failure to pay a certain installment of premium when due.
As grounds for the plea to the jurisdiction, it wás alleged therein that the defendant was a Missouri corporation having its chief office or place of business in the city of St. Louis; that it had no office nor agent in
The cause was set for trial on the first day of the term to which it was returnable, to-wit, October 15, 1917. When it was called, defendant asked, and the court granted, a trial, first, of the issues under the plea to the jurisdiction. Evidence on that was heard and it was established beyond question that the defendant .had no office nor agent in Schuyler county, that the insured was residing in Leaksville, North Carolina, and died there, and that service was made upon defendant at its home office in St. Louis.
In opposition to the plea, plaintiff showed that on September 22, 1917, the defendant gave notice to take, and on the 27th of September did take, depositions in St. Louis. These depositions related to matters concerning the merits of the issue except the fact that- the insured was living at Leaksville, North Carolina, and died there. Plaintiff also introduced a written stipulation between counsel for plaintiff and defendant which was filed in court on said return day, October 15, 1917. wherein, “for the purposes of the trial” it was admitted that defendant executed the policy, that Smith prior to his death was practicing his profession of Osteopathy at Leaksville, North Carolina, and died there on July 16, 1915; that his widow promptly notified the defendant; and that it had denied liability on the ground that the policy was not in force at the time of his death. This stipulation seems to have been entered into October 1, 1917, but, as stated, was not filed in court until the return day, to-wit, October 15, 1917, and after the plea to the jurisdiction was filed.
The case was then tried on its merits before the court without a jury. The court, refusing all declarations of law, found for plaintiff and rendered judgment on the policy for $2500.- The defendant has appealed.
The venue, or the place where the law directs the suit to be instituted, was either in the county where the cause of action accrued or in any county where the defendant had an office or agent. [Sec. 1754, R. S. 1909; State ex rel. v. Gantt, 203 S. W. 964.] The cause of action on a life insurance policy accrues at the place where the insured dies. [Rippstein v. St. Louis Mutual Life Ins. Co., 57 Mo. 86; Martin v. Mutual Life Ins. Co., 190 Mo. App. 703, 7, 5; Bankers Life Assn. v. Shelton, 84 Mo. App. 634.] Consequently, Schuyler county was not the venue specified by the law as the proper place in which to bring the suit, since the cause of action did not accrue there nor did the defendant have an office or agent there.
The fact that the cause of action did not accrue in Schuyler county was not disclosed by anything in the petition, nor did the absence of jurisdiction on account of improper venue appear there or in the sheriff’s return. Hence, the only way to question the court’s lack of jurisdiction was by a plea to the jurisdiction in the
But the trial court held, and plaintiff contends here, that because the defendant served notice to take, and did take, depositions, and entered into a stipulation as to the truth of certain facts, before the plea to the jurisdiction was filed, the lack of jurisdiction was waived.
But, in determining whether such acts constitute a waiver of the lack of jurisdiction here complained of, several things are to be kept in mind. The lack of jurisdiction is based upon improper venue and not upon improper or defective notice or summons, or the service thereof. The acts relied upon to constitute waiver were things done outside of court and amounted to nothing more than a cofubined preparation of the proof or evidence needed by defendant in both trials, the one on the plea and the other on the merits. This preparation for trial was done before there was any opportunity to file a plea to the jurisdiction; and the objection to the jurisdiction was filed as soon as possible, since it was filed on the first day of court, the return day of the writ. The basis of the complained lack of jurisdiction was that the suit was not brought in the proper venue, the place designated by the statute. Such defense could only be raised by answer; the answer must contain all , defenses; and the joining of a defense to the merits does not waive. the defense of improper venue. If the joining of the two kinds of
If the complaint of lack of jurisdiction had been based on want of notice or defective or insufficient service, then no doubt the taking of depositions and the signing of a stipulation as to facts conceded, would constitute a waiver of that defect. Because, such acts would necessarily imply that defendant was admitting that it had notice of the suit and, regardless of whether it had been properly served or not, it was proceeding as if service was regular. In such a case, too, the objection on account of defective service, would not go to the action itself but only to a step required to be taken therein, namely, the serving of summons, or notice. But in the case at bar the objection strikes at the action itself, which action appears all right in the face of things and will be perfectly good if the defendant does not obey the summons and come into court prepared with all defenses which may be required. Hence, its preparation therefor ought not to deprive it of the right to object to the venue, when the objection is made at the first opportunity and before the court is requested to do anything else in the case. In such circumstances, the defendant has done nothing which in any way implies or concedes that the court may proceed regardless of the venue.
For this reason, we think that in a case like the one at bar, where the only way a defendant can raise the question of jurisdiction is by answer, and the law-permits him to include therein such defense jointly with his defenses to the merits, and where he has raised that question as soon as he had opportunity, and asked the court to pass upon that question before asking for anything else or participating in any other step or action of the court as an actor therein, then he should not be deemed to have waived the jurisdictional defect of improper venue because he prepared for the trial of all questions raised in his answer. It is not every act of a defendant that will constitute a general entry of appearance in a .cause. For a party to have impliedly bound himself to submission, he must have “asked or recovered some relief in the cause or participated in some step taken therein.” [Fallon v. Rainsay,
Plaintiff urges that the cause of action did not arise until the appointment of the administrator and that as the administrator was appointed in Schuyler county, the ■ cause of action accrued ' there, citing 1 Corp. Juris, 1145 and 1 Words and Phrases (2 Series), 56. We think, however, this relates rather to the time when the cause of action became enforcible rather than the place where it accrued. Under the decisions herein-before cited, a cause of action accrued to insured’s estate at the place of his death, which became enforcible when administrator was appointed.
Believing that the defendant should not be regarded as haVing waived the jurisdictional question by reason of the preparation of defenses which the law allows to be jointly pleaded, and which preparation involved no act necessarily inconsistent with its right to insist upon the objection to the venue, the judgment is reversed.