Bankers' Life Ass'n v. Shelton

ELLISON, J. An alternative writ of prohibition was issued in this cause by one of the judges of this court, directed against defendant, Hon. N. M. Shelton, judge of the circuit court of Macon county, and returnable to the sitting following its issuance. We have now filed with us the defendant’s return and plaintiff’s motion for judgment, by which papers, together with the alternative writ, we have a full statement of the facts existing in and controlling the controversy. . [638] Henry E. Morgan, a man of family, residing in Macon county, Missouri, took out a policy of life insurance for $1,000 in favor of his wife Sophia, in- the Bankers’ Life Association of Kansas City, Mo., a domestic corporation. He became afflicted and went to the city of St. Louis, Missouri, to be operated upon and there died. His wife Sophia then began a suit on the policy in the Macon county circuit court at La Plata, the writ of summons being sent for service to Kansas City, Jackson county, Missouri, and there served. The insurance company filed an answer in which was set up objections to the jurisdiction of the circuit court of Macon county, and also a plea to the merits of the action. The court, after a consideration of that question, involving facts established by evidence decided that it had jurisdiction and thereupon, as before stated, the insurance company applied for and obtained the alternative writ of prohibition against defendant as judge of said court. Plaintiff being a domestic corporation may be sued in two places only: Eirst, where the cause of action accrued; or, second, where it shall have or usually keeps an office or agent for the transaction of its usual business. R. S. 1889, sec. 2529. Since plaintiff had no place of business in Macon county, the cause of action must have accrued in that county in order, primarily, to confer jurisdiction on that court. The only ground to support the idea that the cause of action accrued in that county is that it was the assured’s residence when he died, or that it was and is the residence of his widow. Neither of these views are sound. The cause of action accrued at the place where it first came into existence; and it came into existence at the place where the right to the action arose; that is to say, at the place where the assured died. Reppstein v. Ins. Co., 57 Mo. 86. The action is transitory and if the assured died outside [639] the state it would fix the place where the action accrued and there the company might be sued; if it could be found there, as in other transitory actions. By provision of the statute, which controls within the limits of this state, a suit may be brought at any place in this state where the action accrued, even though the company is not to be found there. The action should therefore have been instituted either in the city of St. Louis, where the assured died, or in the county of Jackson, where the company had its office. But it appears that this plaintiff as defendant in the suit aforesaid also filed its answer and plea to the merits of the action. It served notice for the taking of depositions and afterwards took depositions to be used in the trial of the cause on the merits under the said answer. That afterwards this plaintiff, as defendant in said suit, asked and obtained a continuance on the merits of the action. In our opinion, these actions taken by this plaintiff amounted to an appearance beyond the mere purpose of objecting to the power of the court and conferred jurisdiction. The case itself belongs to a class of which the defendant as judge of the circuit court of Macon county has jurisdiction, and the voluntary appearance to the merits by the defendant* therein was a waiver of any plea to the jurisdiction of the body corporate. Baisley v. Baisley, 113 Mo. 544; Ivey v. Yancey, 129 Mo. 501; Real Estate Co. v. Lindell, 133 Mo. 386; Moore v. Railway, 51 Mo. App. 504; Speer v. Burlingame, 61 Mo. App. 83. Furthermore, the question of jurisdiction has been presented to the circuit court of which defendant is the judge. It is not a case where the lack of jurisdiction appears upon the face of the proceedings. The question depends on matters aliunde. . If that decision is thought to be erroneous, it can be made the ground of an appeal. "While the mere fact that an appeal will lie from an erroneous decision on [640] tbe question of jurisdiction will not bar a writ of prohibition, it ought to do so unless there is something out of the ordinary to suggest that justice requires the writ. The writ should not be used merely to correct errors. State ex rel. v. Withrow, 141 Mo. 69; State ex rel. v. Seay, 23 Mo. App. 623. The writ will be denied. Smith, P. J., concurs; Gill, J., absent.