Kingman-St. Louis Implement Co. v. Bantley Bros. Hardware Co.

REYNOLDS, P. J. (after stating the facts). — Ordinarily we would be bound by the finding of the court on the facts and that would compel an affirmance. It is not submitted to us on that theory, however, by either party, the contention being that the trial court erred in law, on the question of jurisdiction over the cause of action. It is contended by plaintiff that by appearing and participating in the trial and by filing an answer which joined with the plea in abatement one in bar, that the defendant lost the benefit of the former. It will be observed that it is distinctly averred in the petition that the contract was made in St. Louis; that the cause of action originated in St. Louis; and that, therefore, the venue of the cause was in that city. With this allegation in the petition the defendant could not demur. The only way that it could possibly reach it under our code was by answer, and it did that, denying the jurisdictional averments. It coupled that plea with a denial of the indebtedness and went to trial, practically not disputing the debt, but resting on that part of its answer which denied jurisdiction. While there has been. a great deal of contention over this form of pleading, we are all of the opinion that the decision1 of our Supreme Court in the case of Little v. Harrington, 71 Mo. 390, settles this case. In that decision, Judge Sherwood, speaking for the court and referring to the provision of the statute, that “the only pleading on the part of the defendant, is [315] either a demurrer or an answer” (E. S. 1899, sec. 596), and to the subsequent provision in section 605, that “the defendant may set forth by answer as many defenses and counterclaims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both,” quotes from Bliss on Code Pleading, sec. 345, to the effect that 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 and would be inconsistent with its plain and simple requirements. Referring to Rippstein v. Insurance Co., 57 Mo. 86, and Fordyce v. Hathorn, 57 Mo. 120, as holding to the contrary, the court overrules them as founded on the common law rule existing in this State before the adoption of the code, but abrogated by the code. In Coombs Commission Co. v. Block, 130 Mo. 668, the question again came up, and the doctrine announced in Little v. Harrington, supra, was approved and followed, the Eippstein and Pordyce cases being referred to as disapproved in that case. In Johnson v. Detrick, 152 Mo. l. c. 253, it was laid down that a plea to the jurisdiction, even when coupled with a plea to. the merits, is permissible under our code, and that the latter plea does not, as at common law, waive the former. In Meyer v. Insurance Co., 184 Mo. 481, l. c. 487, Judge Marshall, speaking for Division No. 1, holds that under the present practice in our State, “a 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, and that he does not thereby waive the question of jurisdiction of the court,” and the cases from Little v. Harrington, supra, to Kenner v. Doe Run Lead Co., 141 Mo. l. c. 251, are cited in support of the proposition. [316] In Little Rock Trust Co. v. S. M. & A. Ry. Co., 195 Mo. 669, l. c. 682, the same judge, that question being again before that same division of tbe Supreme Court, announces tbe rule as settled in tbis State in tbe same way. Tbe latest decision of our Supreme Court on tbis question of pleading is that of Thomasson v. Mer. Town Mut. Ins. Co., 217 Mo. 485, an opinion delivered in Division No. 2 by Judge Gantt. Tbis case went to tbe Supreme Court on certification from tbis court. [See 114 Mo. App. 109.] Tbe Supreme Court adopted tbe view of tbe majority of tbe judges of tbis court. See also Wicecarver v. Mer. Town Mut. Ins. Co., filed by tbe St. Louis Court of Appeals, March 23, 1909, not yet reported. Counsel for plaintiff quote from Judge Marshall that, “Consent cannot confer jurisdiction of tbe subject-matter and that objection may be made at any time during tbe progress of tbe case, or even afterwards if tbe record discloses sucb want of jurisdiction. But consent can confer jurisdiction of the person, and tohere a defenda/nt fails to make timely objection to the jurisdiction as to his person, he waives that objection” Little Rock Trust Co. v. Railway, supra, l. c. 683. Tbe last sentence is underscored by counsel, they claiming that these italicized words bring tbe decision of Meyer v. Insurance Co., within tbe rule of waiver which they invoke. Tbe learned counsel have not told us to which Meyer case they refer. That case has been before tbis court twice. We are somewhat at loss to determine which of tbe two is meant. However, when first before tbis court, reported 92 Mo. App. 392, it was certified to tbe Supreme Court, as this court held that tbe appearance of tbe defendant involved in taking an appeal from tbe justice’s judgment was sucb an appearance as constituted a waiver of a right to object to tbe jurisdiction of tbe justice, it being thought that tbis was in conflict with the decision of tbe Kansas City Court of Appeals, [317] in Trimble & Fyfer v. Elkin, 88 Mo. App. 229. Tbe Supreme Court, on the case reaching it, held that there was no conflict and that this court had overlooked the fact that it was the settled law under our code that “a defendant must make all his defenses in the same answer whether such defense as heretofore denominated dilatory, in abatement, or in bar.” [Meyer v. Insurance Co., 184 Mo. 481, l. c. 488.] Judge Marshall then further states in the Meyer case (1. c. 488) that the error consisted in holding that by taking an appeal from the justice of the peace, after the justice had ruled against it on its plea to the jurisdiction, the defendant waived the plea to the jurisdiction, and that the defendant never waived that plea, but has always properly made and preserved the question. This court subsequently, in a case of the same title (Meyer v. Insurance Co., 95 Mo. App. 721), held that a plea to the jurisdiction of the court over defendant’s person may be joined in the same answer with the plea to the merits of the action. The distinction drawn by the decisions is this: Where the defect of jurisdiction over the person or subject-matter appears on the face of the record proper the defense must be raised by demurrer; if the defect is want of jurisdiction over the person, and that appears on the face of the record, by pleading over, or by appearing and participating in the further defense of the case, as by appearing at the taking of depositions, taking a continuance, taking leave to plead, the defect is waived. But if the defect is one arising in pais, one which is not disclosed by the pleadings, then it must be taken advantage of by the answer, as in the nature of a plea in abatement; and in that answer pleas in bar, counterclaims or any other proper defenses may be united, separately stated, without waiving the defense of want of jurisdiction over the person or the subject-matter. An examination of the testimony in the case satisfies us that the contract in question was made and was to be performed in Laclede county, and that the proper [318] venue of tbe action was in that county and not in St. Louis, and that the learned trial judge was in error in law as well as in his finding on the facts, if his decision is to be taken as founded on the facts. To reverse the case and refuse to remand it would be depriving plaintiff of all opportunity of recovering what seems to be justly due it, therefore, we reverse and remand the case to give an opportunity to plaintiff, if it sees proper to do so, to take a nonsuit. The judgment of the St. Louis Circuit Court is reversed and the cause remanded, all concurring.