State ex rel. Granite City & Madison Belt Line Railroad v. Homer

REYNOLDS, P. J. (after stating the facts).— We are aided in the determination of the cause by elaborate arguments by counsel for the respective parties and by briefs which they have since submitted. The points made by counsel for relator are that the preliminary writ heretofore awarded should be made permanent and absolute for the lack of jurisdiction of respondent, as the judge of a circuit court of the state of Missouri, over the subject-matter in the action pending before him because the action is local and not transitory in nature and can be maintained only in the jurisdiction where it arose, which it is alleged is in Granite City, in the state of Illinois. It is also argued that an action is local, first, when it is founded upon privity of estate; second, when the facts upon which the cause of action is based are of a local nature and could only have arisen in a particular place or locality; and third, when the courts of one state refuse to extend the rule of comity and entertain jurisdiction of the cause of action arising in another state, when to do so would be to intermeddle with the internal affairs and public policy of that state. Counsel for respondent in support of the return and as reasons why the alternative writ should be quashed, argue that actions in rem or quasi in rem, as they directly affect title to land, are inherently local, but, it is argued, the case before the court is neither in rem or quasi in rem and does not seek either directly or indirectly to affect the title to any land in or out of this state. The further point is made that personal actions are in their nature transitory, and when they are treated as local, it is on account of some arbitrary distinction of the system under which they — 348 — are prosecuted, but, it is argued, that neither the rule that actions for injuries to land are local, nor the application of this rule to actions by an assignee on a covenant of title running with the land, prevails in this state; that both classes of actions, and a fortiori, the latter, are held to be transitory. It is further argued that even if it should be held that the rule of the common law, that actions by an assignee of a covenant running with land are local, prevails in this state, the case at bar would not fall within this rule, for it is not founded on a covenant running with land; there is no privity of estate between plaintiff and any of defendants as to the land; the Stamping Company sues as an original covenantee on privity of contract. It is further contended that this action of the Stamping Company is a suit in equity for the specific performance of a contract for' personal service; that such suits_ in equity are and always have been transitory unless, by force of some statute, the decree, by its own force, divests property or directly affects its title; finally, that the suit of the Stamping Company, plaintiff is founded on a plain, simple contract of carriage; that there is but one question involved, namely, what is the proper construction of the contract; that there is no suggestion in the record that the enforcement of this contract will or can conflict with any law or statute of Illinois or any public policy of that state, it being asserted by counsel for respondent that “no authority can be cited for or against so obvious a proposition. The relators have cited none. Neither have we.” Counsel for the respective parties have submitted a vast array of authority in support of their several propositions, all of which will doubtless appear in the official report of the case. We have given them careful consideration and without attempting to take up and analyze each of the authorities cited in detail, will content ourselves in the disposition of the case — 349 — ■with, a brief reference to the authorities by which we axe guided in arriving at our conclusion. We may say at the outset that we agree with counsel for respondent that the case at bar is neither in rem nor quasi in rem and does not seek either directly or indirectly to affect the title to any land in or out of this state. We further agree that the proposition made by those counsel, that this action is not founded on a covenant running with the land; that there is no privity of estate between plaintiff and any of defendants as to any land and that the Stamping Company sues as an original covenantee on privity of contract. As we view the case, it is a suit in equity for specific performance of a contract for personal services; a contract of carriage; the question involved is the proper construction, and then a decree for the performance, of a personal contract. That, we think, is the trend •of the authorities cited by counsel for respondent and we refer to them in support of these propositions. Counsel for each of the parties to the cause refer in support of their respective positions to Livingston v. Jefferson, a decision by Chief Justice John Marshall, on circuit, reported 1 Brock. 203. That case, an action at law, while instructive as to the law concerning the distinction between local and transitory •actions, and entitled to the profound respect always accorded to any decision of the great lawyer and Chief Justice who delivered it, does not meet.this case. Learned counsel for relators refer us to Mason v. Warner, 31 Mo. 508, calling attention to that case as defining the difference between local and transitory •actions. That was an action at law, and practically íests on Livingston v. Jefferson, supra. Even in •that case, however, it is to be noted that the Supreme Court overruled the circuit court, which had sustained *a demurrer to the petition in the case, that demurrer bottomed upon the ground that the injury, for recovery of damages for which the action was brought, had — 350 — occurred, in the Mississippi river, outside the limits of the state of Missouri, at a bridge over that river between the states of Illinois and Iowa. As far as it is in point here, it hardly sustains relator’s contention. These cases must be read with reference to our present local statutes and rules of decisions; especially their application to the case at bar can only be made with due allowance between the distinction between actions at law and suits in equity. The right of. courts of equity to operate on persons within their jurisdictions, even when the acts or contracts of those persons relate to lands, has been very often determined affirmatively by our own courts and those of other jurisdictions and is recognized by all text-writers. Mr. Justice Story says that it may be proper to premise “that a bill for a specific performance of a contract respecting land may be entertained by courts of equity, although the land is situate in a foreign country, if the parties are resident within the territorial jurisdiction of the court. The ground of this jurisdiction is that courts of equity have authority to act upon the person: ‘ Aequitas agit in personam And although they cannot bind the land itself by their decree, yet they can bind the conscience of the party in regard to the land, and compel him to perform his agreement according to conscience and good faith.” [2 Story’s Equity Jurisprudence (13 Ed.), par. 743, top page 60.] The same author says, sections 1292, top page 632: ‘ ‘ Courts of equity will in all other cases where the proper parties are within the territorial sovereignty, or within the reach of the territorial process, administer full relief, although the property in controversy is actually situate in a foreign country, unless indeed the relief which is asked is of a nature which the court is incapable of administering.” The same leaimed author in his commentaries on the “Conflicts of Laws,'” section 544, top page 759 (8 Ed.), — 351 — reiterates this doctrine, emphasizing and illustrating* by authority the proposition that a court of equity, called upon to act with respect to lands situate in a jurisdiction foreign to that court, “cannot act upon the land directly, but acts upon the conscience of the person living” (within the jurisdiction of the court). A more modern authority, Bispham’s Principles of Equity (6 Ed.), p. 66, par. 47, lays down as the eleventh maxim in equity and as affecting its jurisdiction, that, “Equity acts in personam. It was against the person that the jurisdiction of the court of chancery was originally acquired, and an attachment against the person has always been, and still is, one of the ordinary means of enforcing obedience to its decrees. Indeed, it may be said that, ‘generally, if not universally, equity jurisdiction is exercised in personam and not in rem and depends upon the control of the court over the parties by reason of their presence or residence, and not upon the place where the land lies in regard to which relief is sought.’ Hence, when the parties are within the jurisdiction of a court of chancery, it will not, ordinarily, hesitate to grant relief, although the property to be ultimately affected by the decree might lie in another forum. ’ ’ In State ex rel. South Missouri Pine Lumber Co. v. Dearing, 180 Mo. 53, 79 S. W. 454, it is laid down in the first place, that in acting on an application for writ of prohibition the court will not consider the merits of the action, the proceedings in which are sought to be prohibited; that an action to restrain the foreclosure of a deed of trust and to cancel the notes secured thereby, is an action in personam and may be brought in other counties than that in which the land lies; that such an equitable action is not one affecting title to real estate within the meaning of the statute which confers exclusive jurisdiction in actions of that character on courts of the county in which the real estate is situate. It is further held that the — 352 — jurisdiction of the court is not to be determined by the prayer for relief but on the facts as constituting the cause of action. In Castleman v. Castleman, 184 Mo. 432, 83 S. W. 757, a suit in equity to set aside two deeds of trust, the suit was brought in the county in which the land sought to be affected was situate, but defendant was residing in another county in the state, being brought into the suit by service of summons in the county of his residence. The defendant raised the question of jurisdiction and moved the court to dismiss the suit on the ground that the circuit court of the county in which the land was situated and in which the action was brought had no jurisdiction. The Supreme Court, passing upon this, held that the general proposition that a court of equity acts m personam was correct; it further held that since the suit under consideration was personal in its character, it must seek the person to be affected in the county of his residence, regardless of where the thing in controversy may be, but that this was subject to one exception, an exception created by what was section 564, Revised Statutes 1899, now section 1853, Revised Statutes 1909, that section providing that suits for the possession of real estate or whereby the title thereto may be affected, shall be brought in the county in which such real estate or some part thereof is situate. It will be noted that this provision is in somewhat different language from that employed in section 12, article 6, of our Constitution, conferring exclusive jurisdiction upon the Supreme Court “in cases involving title to real estate.” As to this constitutional provision, our Supreme Court has said in many cases that to give that court appellate jurisdiction, title to real estate must be directly involved, not merely affected. ' [For illustration see Hewitt v. Price, 204 Mo. 31, 1. c. 44, 102 S. W. 647.] This case of Hewitt v. Price, illustrates the broad view which our Supreme Court takes of — 353 — this matter, referring for support of its position to Massie v. Watts, 6 Cranch., 1. c. 158 and Olney v. Eaton, 66 Mo. 563. In each of these cases, as also in Hewitt y. Price, although the case, as originally brought, involved title to real estate, onr Supreme Court held that when the answer by way of cross bill or counterclaim has set up a contract as to the title to these same lands, that the court had jurisdiction; that while decrees of courts of equity, primarily and properly act in personam and, at most, collaterally only in rem, the specific performance of a contract for the sale of lands lying in a foreign country will be decreed in equity, whenever the party defendant is a resident within the jurisdiction of the court. In State ex rel. Gravin v. Muench, Circuit Judge, 225 Mo. 210, 124 S. W. 1124, our Supreme Court had before it the question of whether the circuit court of the city of St. Louis had jurisdiction and authority to try and adjudicate the matters and things involved in the suit. The case was an application for a prohibition against the circuit judge. Judge Woodson, delivering the opinion, says (1. c. 228) the question is not whether the circuit court had correctly decided the case but whether the court had jurisdiction over the subject-matter of the suit. It appeared that the title to real estate situate in St. Louis county, a county outside the jurisdiction of the judge of the circuit court of the city of St. Louis, was involved. The learned judge, in discussing the question of jurisdiction, cites most of the cases we have before referred to, and quoting extensively from State ex rel ,v. Dearing, supra, holds that because the remedy sought, the question in judgment, directly involved the title to real estate in St. Louia county, the circuit court of the city of St. Louis had no jurisdiction. See, also, Fulton v. Fisher, ---Mo. -, 143 S. W. 438, 1. c. 443, not yet officially reported, in which it is held that — 354 — “suits ill equity are proceedings in personam. Therefore, when the court lawfully acquires jurisdiction of the persons, it may adjudicate their property rights regardless of where the property is situated.” This was in a suit concerning interests in lands in Ohio. This is the last case in which our Supreme Court has considered this matter except that in the case of State ex rel. Pacific Mutual Life Insurance Co. v. Grimm, Circuit Judge, 239 Mo. 135, decided at the October, 1911, term of our Supreme Court, a very elaborate discussion as to the distinction between local and transitory actions is indulged in. This decision is not particularly in jsoint in the case at bar except confirming what we have before said and holding that the action then before the Supreme Court was transitory and not local. McCune v. Goodwillie, 204 Mo. 306, 102 S. W. 997, is a case in which was involved a decree of a court in the state of Ohio, in a suit in equity brought in that court, in which it was adjudged by the Ohio court that certain deeds and transfers made by one party to another, and covering lands in Missouri, were void. Our Supreme Court (1. c. 336) held that the parties to the Ohio suit had had their day in a court of equity having jurisdiction of their persons. That court had jurisdiction of the subject-matter, which involved the construction of a will and execution of deeds thereunder, and that court could bind and did bind the conscience of everybody to that suit. Says Judge Lamm, who delivered the opinion of our Supreme Court, “While the decree could not directly affect the bare legal title to land in Missouri, yet it could and. did conclude all parties on every issue in that case.” A like rule prevails in the state of Illinois, in which state the railroad line here involved is situate. The Supreme Court of Illinois, in Garden City Sand Co. v. Miller, 157 111. 225, had before it a' contract in — 355 — volving title to land- situate in Michigan, that contract made in Michigan, and the Illinois Court recognized the Michigan decree entered upon against these parties, and enforced it in Illinois as against the parties who were found, served and appeared in the Illinois court. The case nearest in line with the contention of the learned counsel for relators as to why the circuit court of the city of St.' Louis should not entertain jurisdiction of this case, is Kansas & Eastern Railroad Construction Co. et al. v. Topeka, Saline & Western Railroad Co. et al., 135 Mass. 34. An examination of the statement of facts and the opinion in that case, however, demonstrates the inapplicability of the decision there reached to the facts in the case at bar. There the court was practically asked to enter upon the construction and supervision of the construction of a railroad in the state of Kansas. The learned counsel for the relators insist that the circuit court of the city of St. Louis should not entertain jurisdiction of this cause because it might be necessary, in order to completely enforce its decree, to go into the state of Illinois as in that state the service is to be performed. There are several answers to this. In the first place, it appears, not very .clearly it is true, by the' petition in the original suit, but by admission of counsel at the bar, that these car service charges — switching charges, etc., are collected by the Terminal Association in St. Louis, that being the party successor to or in control of all the other defendants, as we understand it. We may say in passing that the petition in the case at bar should be made more' definite both as to where and by whom the service charges are collected, and as to the corporate residence of the several defendants which, while the latter, appears by the petition for prohibition, does not appear in the petition in the original suit. In the next place, we — 356 — cannot anticipate what decree or judgment the circuit court of the city of St. Louis may make in the case. It will hardly undertake to operate the road in Illinois. All that it will determine mil be whether there is a contract rate to which defendants are bound. If it so finds, it has before it, in this case, the corporations which, in violation of contract, are enforcing’ it and we anticipate no difficulty on the part of the circuit court of the city of St. Louis in enforcing against these defendants performance of the contract obligations. It will be time enough to consider the power of that court to do that when a decree is rendered, if one is rendered, for the plaintiffs in the original suit. It may even happen that such a decree would he rendered as would take the case, not to our court, but to the Supreme Court. It may further be said that if title to real estate is involved in this suit, as contended for by the learned counsel for relators, this whole proceeding in the application to us by relators for a writ of prohibition is beyond our jurisdiction. But we do not take this latter view of the case for the reasons before given. We have entertained and do entertain jurisdiction of the cause and leave it with the circuit court of the city of St. Louis on the ground that its determination does not involve title to real estate. Our conclusion is, that the preliminary writ of prohibition, heretofore issued; was improvidently issued and should be vacated and the petition for prohibition be denied. It is so ordered. Nortoni and Caulfield, JJ., concur.