138 S.W.2d 1 | Mo. | 1940
Lead Opinion
Prohibition. C.H. Atkinson Paving Company, a foreign corporation, relator here, having its only place of business in Missouri in Livingston County and there served with process, questions the jurisdiction of the Circuit Court of the City of St. Louis over its person in a cause therein pending entitled Eugene Schmidt et al. v. The City of St. Louis, a municipal corporation, C.H. Atkinson Paving Company et al. In said action plaintiffs seek $60,000 damages alleged to have been occasioned their real estate by reason of a change in the grade of an abutting street. Relator, appearing specially, filed a plea to the jurisdiction of said circuit court over its person. Said plea was overruled. This proceeding followed. The named respondent succeeded the judge in the division of said court making the ruling complained of. Only issues of law are presented.
[1] Plaintiffs' allegation that relator is a foreign corporation, organized etc., under the laws of South Dakota and licensed to do business in the State of Missouri "with its only office or place of business in Missouri at Chillicothe, Livingston County, Missouri . . ." establishes relator's residence in Livingston County for the ordinary purposes of venue and service in this State. [State ex rel. Henning v. Williams (Banc),
[2] The litigants submit for our consideration the following statutory provisions only:
"Suits instituted by summons shall, except as otherwise provided by law, be brought: . . . second, when there are several defendants, and they reside in different counties, the suit may be brought in any such county. . . ." [Sec. 720, R.S. 1929, Mo. Stat. Ann., p. 929.]
"Suits against corporations shall be commenced either in the county where the cause of action accrued, or. . . ." [Sec. 723, R.S. 1929, Mo. Stat. Ann., p. 936.]
Respondent also mentions Laws 1937, page 203 (providing that *940 municipalities are to be sued in the county of their residence) but does not point out wherein it is, and we think it is not, of importance under the instant facts.
[3] The main controversy, as submitted, wages around whether plaintiffs' petition states a cause of action based upon a joint liability of the City and relator to plaintiffs; although counsel for respondent contends that the Circuit Court of the City of St. Louis acquired jurisdiction over the person of relator because (1st) if no joint liability is stated, the cause of action accrued in the city of St. Louis (citing Sec. 723, supra); or 2d if a joint liability is stated, the suit was properly brought in the county (the city of St. Louis being a county for governmental purposes — Mo. Const., Art. 9, Sec. 23) of relator's codefendant's residence (citing Sec. 720, supra; the Davis and Williams cases, infra.)
1st. In construing the quoted provisions and holding that an action is maintainable against a corporation under said provision of Sec. 720 in the county of a corporation's codefendant's residence, although the cause of action did not accrue there and the corporation was not a resident of said county, State ex rel. Columbia National Bank v. Davis (Banc),
Said authorities sustain relator's contention that the quoted clause of Sec. 723 applies only in instances wherein a corporation is the sole defendant. Furthermore, as pointed out infra plaintiffs' petition states no cause of action against relator.
2d. Plaintiffs' petition alleges "that the defendants have changed and caused to be changed the grade of Ivory Avenue from its former established and existing grade . . ." Also, "that said change of grade was made under the direction and control of defendants . . .;" and that plaintiffs' property has been damaged as a direct result thereof. Respondent does not undertake to establish the statement in plaintiffs' petition of a cause of action founded upon the joint liability of defendants but says: "If, in this particular *941
case, the city should claim there was no change of grade ordinance, and the defendant Atkinson Paving Company contend there was a change of grade ordinance, the plaintiff should not be put in a position of having to decide the outcome of this issue before the verdict of the jury decides it." Thus respondent admits the liability of the one or the other of the named defendants turns on the factual issue of ordinance or no ordinance. Further, relator's statement that plaintiffs' damages, if any are recoverable in the instant case, are recoverable solely from the city of St. Louis if the change in the grade of the street was effected under an ordinance of said city stands unchallenged. McGrew v. Granite Bituminous Paving Co.,
As stated by relator, a plaintiff's right to successfully maintain an action in the county of the residence of one defendant under the quoted clause of Sec. 720 against a codefendant having a residence in and served with process in some other county of the State has been held to depend on the joint liability to plaintiff of the resident defendant and the nonresident defendant. Graham v. Ringo (banc, 1878),
The jurisdiction of the circuit court of the city of St. Louis over the person of relator is founded upon statutory enactment, not the common law. The face of the record affirmatively discloses not only that plaintiffs state no cause of action against relator but also, under the issues as submitted, that plaintiffs have no cause of action against *943
relator. The situation is not necessarily analogous to one wherein a nonresident of the forum presents an issue involving a failure of plaintiff to state a cause of action against a resident codefendant, as in some of the cases supra. It, the situation, might be different if relator had resided in St. Louis city or if the issues, as submitted, had indicated plaintiffs might have a cause of action against relator. Under the peculiar facts of the instant case, we think relator should not be remitted to the jurisdiction of the circuit court of the city of St. Louis, there to seek relief, or to await the outcome of plaintiffs' action. State ex rel. National Ref. Co. v. Seehorn,
Our provisional rule in prohibition is made absolute. Cooley and Westhues, CC., concur.
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.