| Mo. | Jul 1, 1925
Original proceeding in prohibition. Preliminary rule was duly issued, and the pleadings thereafter made up. This proceeding grows out of the
“Sheriff’s return.
“After due and diligent search the within named defendant, Compagnie Generate Transatlantique, cannot be found in the city of St. Louis, Mo.
“Chas. G. Mohrstadt, Sheriff,
“R. IT. Bloesbr, Deputy.”
No other summons was issued, nor was- further attempt made to get service upon the defendant in the circuit court suit. Later, on the 18th day of August, 3923, there was a default judgment entered against defendant in Division No. 1, this being the assignment division of said court, which was made up of soma sixteen divisions. Motion was- made and filed to set aside this default judgment, but the appearance was special and not general, as specified in the motion. September 15, 1923, counsel for Gundelach filed motion to strike defendant’s motion to set aside default judgment from the files. This motion reads:
“1. • The default granted herein was not predicated upon the return of the Sheriff of the City of St. Louis.
“ 2. The default granted herein was not predicated upon an acknowledgment of service of summons nor a waiver of service of summons by defendant.
“3. That at the time of the default granted herein this court had jurisdiction of the ‘person’ of the defendant.
“4. At the time of the default granted herein the defendant was and still is in default because this court had acquired jurisdiction and still retains jurisdiction over the ‘person’ of the defendant, and said defendant has filed no pleading.
“5. Because the defendant entered a general appearance through its' counsel and by having its counsel appear at the taking of depositions, consenting to various continuances, producing witnesses and examining them upon the merits of the case at the taking of said depositions, the depositions being now on file in this cause, having been filed April 30, 1923, and' offered in evidence at the time the said default was granted, and the said defendant, at said time, being and still being in default of pleading.
“Wherefore, plaintiff prays the court to strike the said motion of the defendant filed on September 12, 1923, from the files.”
■ We quote this motion because it outlines the position of the respondents in the instant case. The return pleads that depositions were taken in the case on April 30, 1923, and sets out portions thereof, and then avers that the appearance of defendant at the taking of such depositions was an appearance in the action, and that after' such appearance the defendant failed to answer the petition of plaintiff, and that by reason thereof the entry of a default judgment was proper. The reply to the return in the case now before us set out the depositions in full, and then avers that there was ho entry of ap
I. The first point made by relator is that prohibition is the proper remedjc If the trial court was without jurisdiction there is no question as to the fact that prohibition is the remedy. Respondents do not question the remedy. In this ease, however, the jurisdiction of the circuit court was dependent upon facts. There -s -,U, ,. « was no.service of process, and the question ot jurisdiction over the person of defendant was dependent upon the fact as to whether or not defendant, through counsel, had voluntarily appeared in, the taking of depositions in the case, and thereby submitted itself to the jurisdiction of the court. There is nothing’; to the point that the appearance of counsel for defendant at the taking of depositions in New York was not voluntary. Even though notice and dedimus from the Missouri court had been duly issued for the taking of these depositions, and the witnesses were forced to attend the tailing of the depositions, and to give testimony, yet the defendant did not have to appear, and if it did appear, such appearance must be deemed to have been voluntary. This because there was no power to compel such appearance. The mere fact that itp officers were witnesses, did not make the appearance of the corporation involuntary. So whatever appearance, if any, upon the part of defendant corporation. must be deemed voluntary.
But it is a further rule that where the facts as to' jurisdiction are undisputed, or agreed upon, then the question of jurisdiction becomes a. matter of law, and can be urged in a collateral proceeding-. Here the facts upon which jurisdiction was assumed, are not only of the files in the court, but are undisputed, and in effect agreed to, because both counsel rely upon and quote from them&emdash; the relator by reply setting them out in full. It then becomes a legal question as to whether or not there was jurisdiction. [State ex rel. v. Homer, 249 Mo. l c. 65; State ex rel. v. Holtcamp, 266 Mo. l. c. 373; State ex rel. v. Caulfield, 245 Mo. l. c. 679; State ex rel. v. Shields, 237 Mo. l. c. 335; State ex rel. v. Mills, 231 Mo. l. c. 499.]
We are speaking now of jurisdiction over the person, and not of jurisdiction of subject-matter. Of the latter and other questions in the following paragraphs. As said, the facts are practically admitted, at least are undisputed. In such case, the question is one of law, upon the facts.
III. The alleged jurisdiction of the person of the defendant, being one dependent upon admitted, or at least uncontroverted, facts, we shall assume to determine whether or not the Circuit Court of St. Louis had jurisdiction of the person, when the default judgment was tepe11- In the files of the ease were the depositions of two witnesses taken in New York City. The record shows that the defendant was represented by counsel. Defendant had an office in New York with a general passenger traffic manager for its business. The notary before whom the depositions were taken certifies as follows:
“Depositions of witnesses, produced, sworn and examined on the 31st day of January, 1923, between the hours of eight o’clock in the forenoon and six o’clock in
“Said depositions of witnesses are taken on behalf of the plaintiff and pursuant to the notice of Messrs. Leahy, Saunders & Walther that depositions of witnesses to be read in evidence in thei above entitled cause on the part of the plaintiff, will be taken at the office of John Quinn, Esq., 31 Nassau Street, New York City, on the 31st day of January, 1923.
“Pursuant to agreement between said John Quinn, of counsel for the plaintiff, and Joseph P. Nolan, attorney for the Compagnie General Transatlantique, the taking of said depositions, pursuant to said notice, at the office of John Quinn, Esq., 31 Nassau Street, New York City, was adjourned to the office of said Joseph P. Nolan, 25 Broad Street, New York City, and Mr. Joseph P. Nolan, as attorney for the Compagnie Generate Transatlantique, consents to the taking of said depositions at his office, the same being taken for his convenience and for the convenience of the witness.
“All formalites in the giving of notices and the taking of depositions are-hereby waived.”
We have omitted the title and number of the case as of record in the Circuit Court in the City of St. Louis, to save space merely. After the foregoing we have the following:
“Appearance:
“For the Plaintiff:
“Messrs. Leahy, Saunders & Walther, by Mr.
John Quinn.
“For the Defendant:
“Mr. Joseph P. Nolan.
“It is stipulated and agreed between counsel for the plaintiff and counsel for the defendant that A. T. Henderson be sworn before Miss Ida Odes, notary public*233 for the County of New York; that said Ida Odes take in shorthand the questions and answers put to and made by said witness and that she transcribe the same and reduce the same to typewritten form and that said testimony, when so typewritten by said Ida Odes, be signed by the witness and sworn to before said Ida Odes, as such notary public, all with the same force and effect as though the said witness were sworn before a justice of the New York Supreme Court and as though his testimony, when thus reduced to typewritten form, had been likewise signed and sworn to before a justice of the Supreme Court.
££A. T. Henderson, of lawful age, being produced, sworn and examined on behalf of the plaintiff deposes and says:
££ (It is hereby stipulated that all objections as to materiality and relevancy may be reserved until the time of the trial; objections to questions as to form being taken now or waived). ”
In the testimony Mr. Henderson says: ££I am passenger traffic manager.” So it appears here, as it did to the circuit court, that Mr. Nolan was an attorney, and that he appeared for defendant, when these depositions were taken. The depositions show that he cross-examined the witnesses. The question is whether or not the taking of these depositions subjected the defendant to the jurisdiction of the court where the case was pending. It is not denied that Nolan was a lawyer, and appearing for defendant in the taking of these depositions. The contentions of learned counsel for relator, as we gather them, are (1) that Mr. Nolan is not a Missouri lawyer, and therefore his appearance for defendant would not subject the defendant to the jurisdiction of the Missouri court, and (2) that the depositions do not touch the merits of the case, and therefore, no jurisdiction upon the Missouri court was conferred by his appearance for the defendant. We deem neither contention to be well taken. Prohibition is a collateral attack upon the action of the trial court. It is not an appeal and cannot be con
Nor can we agree with learned counsel for relator that the sole purpose of the depositions is to locate an agent in St. 'Louis for the purpose of procuring service. There are things in these depositions which go to the merits of the case, or might be useful in the trial of the case. Plaintiff claimed to be a passenger upon defendant’s steamship, and as confirming that fact it would be proper to show that he bought and had a paid ticket. The authority of the man in St. Louis who got 'the ticket might be of avail. Then further, if there was a report made to the office in New York, by the agents of the defendant '(as there was), the finding out of that fact went tow'ard the merits of the case. By the deposition it is shown that the company did have a report of the accident, and that it had sent such report to its counsel in St. Louis. This goes to the trial of the merits of the case, so. that if the appearance in the taking of the depositions was a submission to the jurisdiction of the Missouri court, then the failure to plead after such submission to the jurisdiction authorized the default judgment. Of this question next.
Bespondents cite us to the case of State ex rel. Shoemaker (Laumeier) v. Hall, 257 S. W. 1047. That case lends but little light upon the question, although the opinion rules as respondents contend. It must be noted that there were several theories of jurisdiction in that case, of which the appearance at the taking of depositions was one. The three concurring judges (necessary to make a judgment) only concurred in the result, so that no law was made by the opinion, unless it be in the per curiam opinion, in which there was an unrestricted concurrence of five judges. This opinion, however, deals with a matter (going to jurisdiction) other than the appearance at the taking of depositions. Vide 257 S. W. l. c. 1055.
It is stated in the opinion that an appearance at the taking of deposition upon the merits of the pending cause was a general appearance, and a submission to the jurisdiction of the court. Speaking* personally, we had no time to review the case law upon that interesting question, and so just concurred in the result, so as to'make a judgment, being satisfied that the relator in that case had always been in court, and that the service of notice of the motion upon her counsel was sufficient. However in this case, T have gone' into the authorities, and am satisfied that Woodson, C. J., in the Hall case has properly expressed the law upon the force and effect (as an appearance, and as submission to the jurisdiction of the court) of appearing in the taking of depositions upon the merits of the action. •
In 4 Corpus Juris, sec. 2'7, p. 1333, it is said: “Broadly stated, any action on the part of a defendant, except to object to the jurisdiction over his person, which recognizes the case as in court, will constitute a general
In 3 Gyc. 1 c. 504, the general rule is very tersely stated thus: “Any action on the part of defendant, except to object to the jurisdiction, which recognizes the case as in court, will amount to a general appearance.” This author also cites the Shelton case', supra.
In the Shelton case there were three acts which the court held would suffice as a. waiver of process, and a submission of the person to the jurisdiction of the court. One of these was that defendant had taken depositions upon the merits of the case.
In the instant, case the defendant consented to and did appear in the taking of depositions at a place different from that named in the notice. It made no kind of an objection striking at the jurisdiction of the Missouri court, but on the contrary entered into a stipulation which of itself submitted matters for the determination of the Missouri court, viz: “It is hereby stipulated that all objections as to materiality and relevancy may be reserved until the time of trial; objections to questions as to form being; taken now or waived.” The entering into this stipulation is an additional matter tending to show that defendant was submitting to the Missouri 'court, and was not questioning jurisdiction over the person of defendant.
Li case of Bates & Wright v. Scott Bros., 26 Mo. App. l. c. 429, Haul, J., for the Kansas City Court of Appeals, lias tersely stated the rule, and cited cases from this court upholding such rule, thus:
“The question is, did the appellees, by accepting service, by their attorneys., of- the notice given by the appellants to take depositions' in the case, after the appeal, and by appearing at the taking of the deposition, in pursuance of said notice, and by objections, and having the same noted by the officer taking the deposition, waive*237 tlie notice of appeal, required by statute to be given by the appellant?
“In Page v. Railroad, 61 Mo. 79, the appellee was held to have waived the notice of appeal by having witnesses subpcenaed to attend the trial in the circuit court. The subpoenaing of witnesses was held to be ‘one of the first steps in the preparation for an actual trial in court,’ and that ‘ a party, if he chooses, may voluntarily appear in court, and, he will then be subject to the same jurisdiction as if he had been brought in by notice, or regular process. An act that, from its nature, implies: that he is in court, for general purposes, as to plead to the merits, or contest the trial, will be sufficient. ’
“Had the appellees taken the depositions of witnesses and filed them with with the circuit clerk, they would thereby have waived the notice of appeal. [Wolff v. Danforth Co., 70 Mo. 182" court="Mo." date_filed="1879-10-15" href="https://app.midpage.ai/document/wolff-v-danforth-artificial-light-co-8006284?utm_source=webapp" opinion_id="8006284">70 Mo. 182.] And it would seem that, had the appellees, by their attorneys, appeared at the taking' of the deposition, and cross-examined the witness, that, thereby, in connection with the other facts stated, they would have waived the notice of appeal. [Berry v. Trust Co., 75 Mo. 433.] We think, and so hold, that, from the facts stated, as to the taking and filing of the deposition, the appellees must be deemed to have waived the notice of appeal, and to have appeared in the circuit court for general purposes. By objecting to certain questions and having the objections, with the grounds thereof, noted, they plainly were preparing to have the circuit court pass upon the validity of the objections, and, in that way, they were preparing for trial in said court.”
In the instant case the counsel for defendant not only appeared and cross-examined the witnesses, but he went further and stipulated that objections as to relevancy and materiality of any of the evidence should be determined upon objections to be made in the Missouri court. By his cross-examination and entering objections to questions, he was, in the language of Judge Hall, “preparing for trial in said court.”
The foregoing cases (all of which touch jurisdiction of the person) suffice to show that the conduct of counsel for defendant in the taking of the NeAv York depositions was a general appearance in the case, and was a submission to the jurisdiction of the Missouri court by the defendant.
Y. In supplemental brief, after the argument of the cause, but in pursuance to a suggestion made in argument, it is urged that the 'Missouri court has no Jurisdiction of the subject-matter of this action, i. e. that the jurisdiction of the subject-matter is in some Federal court having admiralty jurisdiction. The motion filed by relator here (defendant in the lower court) to, set aside the judgment by default does not raise the question of jurisdiction over the subject-matter. It only goes to the jurisdiction over the person. But a,s we have always said that jurisdiction as to subject-matter can be raised at any and all points of the proceeding- (even in this court upon appeal for the first time) we might well pass upon the question now as later.
‘ ‘ The Constitution in granting to the United States judicial power over admiralty and maritime causes did not deprive the State courts of jurisdiction over the same subject-matter when exercised under other forms, of procedure. The First Congress, in the Judiciary Act óf 1789, declared the jurisdiction of the Federal courts over causes of admiralty and maritime jurisdiction to be exclusive, yet saved to suitors in all cases ‘the right of a common-law remedy, where the common law is competent to give it.’ The State are held thereby to be prohibited from establishing courts having cognizance of cases of admiralty and maritime jurisdiction, according to the course of proceedings in courts of admiralty; and hence a State court can have no jurisdiction of a suit in rem which is cognizable by the district court. But the common-law courts always offer a remedy in personam, and the right to pursue this course of redress is saved to every litigant by the provision of the Judiciary Act. Of such suits the admiralty and common-law courts have concurrent jurisdiction. It is, accordingly, a matter of election with an injured party, whether to ask relief in a State Court or in the district court; and the defendant may not object to the proceeding in the State court on the ground that the cause of action is in its nature maritime, so long as the action is in personam.”
See also 1 Corpus Juris, page 1253, whereat it is said: ‘‘Where no process is served upon, nor any remedy is sought against, the vessel, but only a personal judgment against the owners is prayed, the case is not within the exclusive jurisdiction of the Federal courts,
The foregoing; follow's a. discussion of the Judiciary Act of 1789, and the saving clause therein. In Steamboat Co. v. Chase, 83 U. S. (16 Wall.) 1. c, 533, it is said:
“Where the suit is in rem against the thing, the original jurisdiction is exclusive in the District Courts, as provided in the ninth section of the Judiciary Act; but when the suit is in personam against the owner, the party seeking redress may proceed by libel in the District Court, or he may, at his election, proceed in an action at law, either in the Circuit Court if he and the defendant are citizens of different States, or' in a State court as in other cases of actions cognizable in the State and Federal courts exercising jurisdiction in common-law cases, as provided in the eleventh section of the Judiciary Act. He may have an action at law, in the case supposed, either in the Circuit Court or in a State court, because the common law in such a cáse is competent to give him a remedy, and wherever the common law in such a case is competent to give a party a remedy, the right- to such a remedy is reserved and secured to suitors by the saving clause contained in the ninth section of the Judi.cia.ry Act.”
And at page 534 of same case it is further said:
“Eixamined carefully it is evident that Congress intended by that provision to allow the party to seek redress in the admiralty if he saw fit to do- so, but not to make it compulsory in any case where the common law is. competent to give him a remedy. Properly construed a party under that provision may proceed in rem in the admiralty, if a maritime lien arises, or he may bring a suit in personam in the same jurisdiction, or he may elect not to go into admiralty at all, and may resort to his common-law remedy in the State courts, or in the Circuit Courts of the United States if he can make proper parties to give the Circuit Court jurisdiction of his case”. ’ ’
This court has recognized the same rule, and the same construction of the Judiciary Act. [Conrad v. De-Montcourt, 138 Mo. l. c. 322, and eases therein cited.]
The cases relied upon by relator can be readily distinguished. The Circuit Court of the City of St. Louis had jurisdiction of the subject-matter. From it all appears the fact that our preliminary rule in prohibition should be quashed, or discharged, and not made absolute as prayed by relator. It is so ordered.